Volume 97 — Arkansas Reports

W. Wells, Judge; 1. In an indictment for larceny, allegations of ownership are material and must be proved as alleged. 73 Ark. 32. The proof is not sufficient to fix the ownership of the hog in the prosecuting witnesses. As to the mark, while it might not have been necessary to allege it in the indictment, yet, since the State elected to allege it, it became material, and must be proved as laid. 31 Ark. 49. See also 13 Ark. 168; 62 Ark. 538; 61 Ark. 15; 73 Ark. 169. 2.

Hays, judge; 1. The indictment is not sufficient. It does not allege that the parties to the alleged marriage contract were the one male and the other female, nor that appellant in any way purported or represented himself as authorized to solemnize the marriage rite. It is 'based upon section 5204, Kirby’s Digest.

<p>Appeal from Saline Circuit Court; W. H. Evans, Judge;</p>

<p>Deeds — agreement to support grantor as consideration. — An agreement upon the part of two sons to support and care for their father during the remainder of his natural life is a sufficient consideration for a deed conveying land to them.</p>

<p>1. Appeal and error — harmless error. — Where the jury in a damage suit returned a verdict for the defendant, error of the court in refusing to instruct the jury upon the measure of damages was not prejudicial. (Page 18.)</p> <p>z. Fraud — liability eor ealse representation. — A false representation, to be actionable, must not only have misled the other, but must have been made fraudulently and with intent to mislead; no one is liable for a false representation who honestly believed it when made, however false it may be, but he is liable if he knew it to be false, or, knowing nothing about it, asserted it to be true. (Page 18.)</p>

Hays, Judge; The notes were void, and could not be the basis of recovery. The cause of action having failed, it could not be amended so as to substitute a new party plaintiff who had or could be shown to have a cause of action. Kirby’s Digest, § 513; Id. § 6096; 67 Ark. 579; 34 Ark. 157; 54 Ark. 444; 89 Ark. 239; 47 Ark. 378; 64 Ark. 348; 25 Ark. 10; 70 Ark. 200; 86 Ark. 155.

<p>Rear estate broker — when commission earned. — Where a real estate broker procures a person who is ready, able and willing to purchase the property upon the terms under which the agent is authorized to negotiate the sale, and the owner refuses to convey, the agent is entitled to his commission.</p>

Hays, Judge; Appellee’s liability does not necessarily rest in the acts of its agent in sending the telegrams being within the strict scope of his employment. It was appellee’s duty to carry appellant safely to his destination, and it is immaterial whether the tort of its agent was in the course of employment or not. 14 Am. Rep. 114; 24 Am. Rep. 296; 17 Am. Rep. 504; 1 Clark & Skyle on Agency, § 496; 42 Am. Rep. 33; 15 Am. State Rep. 753; 3 L- R. A. (N. S.) 605.

Yerger, Special Judge; 1. The marriage of Steve Watson and Clarissa, while slaves by the consent of their master, followed by their living together as husband and wife after they were emancipated, was a lawful marriage, and their son, appellant, is legitimate, and capable of inheriting his property. 34 La. Ann. 860; 32 Ark. 217; Acts 1867, p. 99, § 3; 38 Ark. 493. 2.

Hudgins, Judge; statement by the court. The indictment, omitting formal parts, is as follows: “That the said F. M. Hancock, in the county of Searcy, and the State of Arkansas, on the 10th day of December, A. D. 1909, being then and there a licensed liquor dealer in the city of Eureka Springs, Arkansas, unlawfully did solicit orders for intoxicating liquors in territory of this State, in which territory it would be unlawful to make sales of intoxicating liquors, towit: in…

Haden Humphreys, Chancellor; statement by the court. On the 28th day of April, 1908, C. P. Boles and his wife executed to appellant a mortgage on lot one, block one, in the town of Fayetteville, to secure the following indebtedness, to-wit: one note of even date for $1,250, one note dated April 24, 1908, for $1,250, and other notes indorsed by C. P. Boles, which latter amounted to $9,162.82. The lot described was the residence or home place of Boles and wife, the mortgagors.

There beirg no by-law of the association on the subject, the custom of the association and the interpretation of its laws by its officers would govern; and the proof is clear that they have construed its laws to authorize a member to change his beneficiary at any time. Such custom and practice has the force of by-laws. 67 Pac. 609; 56 Atl. 289; 58 Miss. 421; Field on Corporations, § 305; 37 Yt. 431; 16. Ohio Cir. Ct. Rep. 50. 2.

S. Maples, Judge; For the destruction of mature fruit trees the only proper measure of damages, in the very nature of such trees, is the depreciation in value of the land of which they form a part. 132 N. Y. 199; 54 Mo. App. 223; 72 Gal. 75; 13 Pac. 401 ; 102 la. 286, 71 N. W. 409; no N. W. 657; 76 Neb. 545, 107 N. W. 757; 95 S. W. 600; 67 Ark. 371. 1. The evidence was sufficient to sustain the verdict.

Shaver, Chancellor; STATEMENT BY THE COURT. On the 20th day of November, 1908, the Mena Lumber Company, a domestic corporation, owning and operating a sawmill plant in Polk County, Arkansas, executed a mortgage to John Layson to secure the sum of $22,472.26, evidenced by a promissory note, as follows: $250 to be paid on the 1st day of January, 1909, and $250 on the 1st day of each succeeding month until the whole sum is paid.

<p>Appeal from Logan Circuit Court, Southern District; Jeptha H. Evans, Judge;</p> <p>The admission of the confession after the case had gone to the jury was within the discretion of the trial court, and this discretion will not be interfered with unless it has been abused. 54 Ark. 124; 34 Ark. 383; 36 Ark. 629; 32 Ark. 585; Id. 562; 40 Ark. 311; 62 Ark. 365; 69 Ark. 558; 75 Ark. 325.</p>

<p>1. Schools and school districts — power oe legislature. — The Legislature may create or abolish a school district, or change its boundaries at will, without consulting the wishes of persons residing in the territory affected. (Page 73.)</p> <p>2. Same — RIGHT OE TRANSFER FROM ONE DISTRICT TO ANOTHER. — Kirby’s Digest, § § 7639, 7G40, providing that the county court may, upon petition, transfer children from one school district to another for educational purposes, and also the parents’ district school tax, is intended solely for the benefit of the children in obtaining better school facilities, and the property of a person who has no children can not be transferred from one school district to another. (Page 74.)</p> <p>3. Same — form OF petition. — A petition to the county court asking that petitioner’s district school tax be transferred from one school district to another should show that petitioner has children. (Page 73.)</p> <p>4. Same — sufficiency of petition for transfer. — While several property owners may unite in a petition to the county court asking that their district school tax be transferred from one school district to another, a general petition signed by a number of persons, stating that they are owners of land and fathers, without specifying who are the ■owners of land and who are the fathers, is demurrable. (Page 73.)</p>

<p>Appeal from Monroe Chancery Court; John M. Elliott, Chancellor;</p>

<p>1. Carriers — livestock'—duty to feed and water. — Under the act of Congress forbidding railroads to confine cattle longer than 28 consecutive hours without unloading them for rest, water and feed for at least five hours (34 Stat. at L,., 607), it was not negligence for a railway company, in an interstate shipment of cattle, to stop the shipment for rest, water and feeding of the cattle at a convenient place when it was apparent that it could not be delivered at destination within the 28-hours limit. (Page 85.)</p> <p>2. Same — livestock—delay in shipment. — Where a railway company stopped a shipment of cattle for food and rest, as required by the Federal statute, for 12 hours and until the cattle could be carried by a fast freight train, instead of sending them by a slow train, which would have reached the destination no sooner, it was error to submit to the jury the question whether the railroad company was guilty of unreasonable delay. (Page 83.)</p> <p>3. Instruction — applicability to issues. — ’Where the complaint in an action against a carrier for delay in shipping livestock alleged no damage on account of the condition of the pen in which the cattle were fed and .watered, it was error to submit to the jury the question whether the cattle were injured on that account. (Page 86.)</p>

<p>Appeal from Monroe Circuit Court; Eugene Lankford, Judge;</p>

<p>1. Accomplice — who is. — Upon a prosecution for being accessory to the crime of killing a sheep with a felonious intent to steal the same, a witness who testified that she was present when the sheep was killed and helped to eat it was an accomplice. (Page 94.)</p> <p>2. Same — corroboration.—An accomplice may be corroborated by the admissions of the defendant and by circumstances which connect him with the .crime charged. (Page 94.)</p> <p>3. Evidence — oeeiciae records. — best evidence. — It was not error to refuse to permit a surveyor to testify as to what the State official maps and plats show as to the boundary line of the State, such maps and plats being themselves the best evidence, and provable by introduction of the originals or by duly certified copies. (Page 94.)</p> <p>4. Same — oeeiciae survey. — A certified copy of an official survey made by a county surveyor is prima facie correct, but any duly qualified surveyor may testify as to its correctness. (Page 93.)</p> <p>5. New trial — newly discovered evidence. — Whether a new trial should be granted for newly discovered evidence is largely confided to the discretion of the trial court; and unless it appears that such discretion has been abused, its ruling thereon, will not be disturbed. (Page 96.)</p> <p>6. Same — newly discovered evidence — sufficiency.—Newly discovered evidence that is merely cumulative in its nature or contradictory of evidence adduced upon .the trial is not sufficient ground for new trial. (Page 96.)</p> <p>7. Larceny — indictment—allegation of ownership. — While the allegation of ownership in an indictment for larceny is material and must be proved, as alleged, a conviction will be sustained, notwithstanding the indictment alleges that the ownership of the property is unknown to the grand jury, if the State proves that such fact was unknown to the grand jury. (Page 96.)</p> <p>8. Criminal law — verdict—sufficiency.—A verdict finding the accused guilty as charged in the indictment and fixing his penalty at one year in the penitentiary is not invalid, as the word “punishment” was evidently intended. (Page 97.)</p>

<p>Appeal from Independence Circuit Court; Charles 'Coffin, Judge;</p>

<p>Appeal from Marion Circuit Court; Brice B. Hudgins, Judge;</p>

<p>Homicide — drunkenness as defense. — The court instructed the jury in a murder case that “mere drunkenness is no excuse or justification for committing a crime; so, in this case if you believe from the evidence beyond a reasonable doubt that defendant voluntarily became too drunk to know what he was about, and then, without provocation, assaulted and killed the deceased at a time when the deceased was making no attempt or demonstration as to kill the defendant, or to do him some great bodily harm, then and in that event he would not be guilty of murder in the first degree, but it would be your duty to find the defendant guilty of murder in the second degree if he acted with malice in killing the deceased, or manslaughter if he killed deceased without malice/' Held not erroneous.</p>

<p>Appeal from iClay Circuit Court, Western District; Frank Smith, Judge;</p>

<p>Appeal from Sevier Circuit Court; James S. Steel, Judge;</p>

<p>Appeal from Searcy Circuit Court; Brice B. Hudgins, Judge;</p>

<p>1. Judgment — when not vacated. — A decree of divorce will not be vacated at the defendant’s instance as for “unavoidable casualty or misfortune” on account of the failure of her attorneys to take depositions where she did not furnish them money to take them, nor on account of their failure to ask the court to require the plaintiff to furnish her expense money or to ask the court to hear oral testimony, nor on account of the failure of her counsel to notify her of the day of trial. (Page 120.)</p> <p>2. Divorce — vacation of decree — caches.—Where the defendant in a decree of divorce waited two years before taking steps to vacate the decree upon the ground of the fraud of her attorneys and until the plaintiff had married another woman, her application should be denied on account of laches. (Page 121.)</p> <p>3. Same — cost of a-ppeal. — On appeal by a husband-from an order vacating a decree of divorce from his wife, where the decree is reversed and the application to vacate the decree is dismissed, but the wife is unable to pay the costs of the appeal, they will be adjudged against the husband. (Page 123.)</p>

Robertson, Chancellor; STATEMENT BY THE COURT. Appellee sued for divorce, alleging wilful desertion. Appellant admitted the desertion, but alleged that it was caused by the adultery of appellee. He testified as follows: “My nephew, William Warfield, told me September 14, 1908, that he saw Tom Johnson come out of my house in my absence with his hat off and when asked what he was doing, said: 'Fellow, I have been having a time,’ and proceeded to tell him what he had been doing.

Appellant was entitled to select from or exhaust the whole panel of 24 jurors selected by the jury commissioners. Kirby’s Dig. § § 4257, 4528; Id. § § 2347, 3448;; 12 Enc. of PI. & Pr. 525; 39 R. R. A. 488; 50 Ark. 492; 9 Pac. 955; 67 Ark. 365. Twelve of the regular panel being engaged in another case, the court exercised a proper discretion in directing the panel to be filled from bystanders.

V. Bourland, Chancellor; 1. An action to remove a cloud on title can not be maintained unless the plaintiff has both the legal title and possession, or his title be an equitable one. 37 Ark. 643; 44 Ark. 436. The owner of land can not maintain a suit to remove a cloud created by himself. • 58 Mich. 347. 2.

5 Am. & Eng. Enc. of L. SI4» note 1 5 83 Ala. 238; 3 Am. St. Rep. 715; 99 Mo. 263; 92 Mo. 208; 1 Am. St. Rep. 760; 31 Am. & Eng. Ry. Cases 1; 9 Utah 340. And such person is entitled to the privileges and protection of a passenger. 38 La. Ann. 111. There is no presumption in this State that a person found on a freight train is not legally there or that he is a trespasser; the law is to the contrary. Kirby’s Digest, § 6705.

Steel, Judge; The facts developed in evidence on the second trial are substantially the same as on the first trial. The law as declared by this court on first appeal is the law of the case now. 89 Ark. 368; 92 Ark. 350; Id. 554, 55§-

Hays, Judge; statement by the court. Appellant had executions issued on certain judgments it held against Wood & Tucker, a firm of merchants. The executions were placed in the hands of appellee Lewis. They were issued May 6, 1905, and the return day was June 5. Lewis levied upon the goods of the debtors, and advertised same for sale on May 20, 1905. On that day Lewis demanded of the appellant through its attorney an indemnifying bond.

W. Wells, Judge; The indictment will not support a verdict of guilty of robbery, and the evidence will not support a verdict of guilty of larceny. This is a case of robbery or nothing. Property taken in the presence of witnesses, even though violently done, is not robbery if taken under the claim of ownership. 28 Ark. 126.

Kirby’s Dig., § 3687. See also '47 Ark. 378, 384, 387- This case differs from Martin v. Hodge in this, that while in that case the taking was wrongful, in this case there. was no wrongful taking. The proof is clear that appellee’s son won the wagon, and that appellant delivered it to appellee voluntarily. Appellant’s cause of action arises from1 a transgression of the positive law of the State, and he can obtain no relief. 47 Ark. 383, 384.

Hays, Judge ; The court erred in refusing to give a peremptory instruction in favor of these appellants. There is no evidence whatever upon which to base a verdict of conviction. The most that is shown is that a crime was committed; nothing whatever to connect these defendants with the commission of that crime. The evidence is sufficient to sustain the verdict of guilt as to both defendants.

The rule is fundamental that, in order to recover damages on account of the unintentional neglect of another, it must appear that the injury -was the natural and probable consequence thereof, and that it ought to have been avoided in the light of attending circumstances. 150 U. S. 249; 69 Ark. 42, 45; 86 Ark. 289.

V. Bourland, Chancellor; The lease itself provides -the condition of forfeiture. Failure to begin the work of prospecting and developing the lands described therein “or other lands within four miles thereof within one year from the date of execution of the lease” would have worked a forfeiture; but, (the terms of the lease having been complied with in that respect, no other ground of forfeiture can be implied.

48 Ark. 94, 103. The two offenses, forgery and uttering forged paper, may now be joined in the same indictment. Bell v. State was decided before the enactment of this statute. Kirby’s Dig. § 2231; 71 Ark. 82.

Grace, Judge; statement by the court. George Holmes, a boy about fifteen and a half years of age, was at work for appellee .at its saw and planing mill, cleaning out sawdust from under a resaw. The sawdust was about a foot deep. Holmes used a rake to clean up the dust around the machine, but the dust underneath could not be cleaned out with a rake. A blow pipe was adjusted that came down close to the floor for the purpose of drawing up the dust.

Elliott, Chancellor; There is no laches, because appellant instituted proceedings within one year after the homestead right ceased.

Jjlliott, Chancellor; The excess of three chains and 62 links should be thrown on. the north tier of lots. 23 Ark. 710. No change having been made by the government in the Allis survey of section 6, none can be made now. 88 Ark. 37. The southwest corner of this section, established by the government surveyors, controls the location of the lines between lots 11 and 18, though the section line may be deflected from a direct course. 85 la. 398.

Hays, Judge; STATEMENT BY THE COURT. Saturday, December 5, 1908, at about 5:20 p. m., R. U. Hopkins delivered to the agent of appellant at Longview, Texas, for transmission the following message: “To Mr. Sylvester Hufstedler, “Camden, Ark. “Henry died here today. Find out whether mother wants him brought to Malvern or not.” “Henry” was the brother of the sender of the message, and appellee was their mother.

Guy Pulk, Judge; 1. Appellant would not be bound by the statement furnished by the section foreman to the plaintiff, and it was improperly admitted in evidence. His authority as agent must appear from the evidence. 27 111. App. 412; Id. 572; 1 Greenleaf, Ev.

Appellant and his brother were indicted jointly for killing Will Shores. The charge against them was murder in the first degree. They severed on the trial, and appellant was convicted of manslaughter, and his punishment was assessed at two years in the penitentiary. The Martins and the Shores were not on good terms. While they were returning from a religious meeting, Sherman Shores, who was on horseback, rode around appellant, who was walking.

<p>Appeal from Sebastian Chancery Court; J. V. Bourlcmd, Chancellor;</p> <p>statement by ti-ie court.</p> <p>This is an action brought by appellee, Henry Gacking, against E. B. Petty, John Shaw, American National Bank and P. A. Ball for the purpose of recovering judgment for an amount of money loaned by Gacking to Shaw and Petty. The facts, briefly stated, are as follows:</p> <p>During and prior to 1902 Gacking was a customer of the American National Bank, and had been in the habit of calling upon his friend, P. A. Ball, the cashier of that bank, to attend to many of his little business matters. The bank was furnishing Gacking with a box in its safety deposit vault free of rent, and Ball had to some extent looked after a few of Gacking’s financial affairs, acting merely as his friend and receiving no compensation therefor. During the year 1901 Gacking loaned to Shaw and Petty $125, and took their joint note for that amount. In November, 1902, Shaw desired to increase the amount of this loan to $250, and requested Gacking to loan him $125 more, which amount would be added to the old note of $125, making the total $250, for which amount Shaw and Petty would give their new note to Gacking.</p> <p>Gacking called Mr. Ball on the ’phone and asked him if Petty was good for $250. Mr. Ball responded that he was, and Gacking then notified Ball to let Shaw have $125 of his money and surrender to Shaw the old Petty and Shaw note when Shaw brought to the bank a new note for $250 signed by Shaw and indorsed by Petty.</p> <p>Some time later during the same day Shaw came to the bank and presented to Mr. Ball the following writing:</p> <p>“Mr. P. A. Ball: I will sign Mr.* John Shaw’s note for $250 all right. 11-19-1902. [Signed] E. B. Petty.”</p> <p>In accordance with instructions, Mr. Ball then made out a note to Gacking for $250, which was signed by Shaw and the above agreement of Petty to sign the note was attached to the note itself and Shaw given $125 of Gacking’s money. At the time Shaw brought .the above writing to the bank he told Mr. Ball that Petty was engaged in work, and would come to the bank later in the day, or within a short time thereafter, and sign the note. A few days later Gacking came to the bank, and Mr. Ball advised him what had been done, showed him the note signed by Shaw with Petty’s agreement attached thereto, and told Gacking it would be advisable to have this note .actually signed by Petty, but that his agreement to sign the note was binding and would hold him, but for business purposes the note should be signed by Petty. Gacking agreed to have this attended to, took the note, placed it in his safety vault and had exclusive control over the note from that time to the present. Petty never signed the note. After the maturity of the note the interest was paid on it by Shaw to maturity, and indulgence was granted at Shaw’s request, but for no fixed period. On the 12th of March, 1906, Shaw paid $20 on the -interest then due on the note. The above are substantially the facts as they were found by the court.</p> <p>The court found that the bank -and Ball “had not been guilty of any negligence resulting in damage to Gacking.”</p> <p>The decree was a dismissal of the complaint as to the bank and Ball, and a judgment in favor of appellee against appellant Petty in the sum of $250, with interest, etc.</p> <p>1. If appellee had a -cause of action against Shaw, on the note sued on against appellant on the offer to guaranty alleged to have been signed by, the remedy .at law was complete and adequate, and the court erred in refusing to transfer the case to the law court.</p> <p>2. If the writing signed by Petty was an offer to guaranty, notice of acceptance of such guaranty should have been given and alleged in the complaint. Not being alleged, the demurrer should have been sustained. 22 Ark. 540; 78 Mo. App. 670; 73 Mo. 361; 93 Mo. App. 237, 241. Appellant was entitled also to notice of the nonpayment of the Shaw note at maturity. Such notice not having been given, appellant should have been exonerated. 22 Ark. 540, 543; 4 Ark. 84. See also 6 Ark. 142.</p> <p>3. An agreement upon a valid consideration bjr the holder of a note to extend the time of payment, without the consent of the surety, will discharge the surety. 54 Ark. 97.</p> <p>1. The agreement signed by Petty was an original undertaking. He is bound as maker of the note. 77 Ark. 53 ; 40 Ark. 5455 Aik. 219; 64 Ark. 470; 68 Ark. 423; 95 U. S. 95.</p> <p>There is no escaping the fact that his note was intended to enable Shaw to get the money and the other note upon which Petty was bound, and that it produced the results intended. Daniel on Neg. Instruments (5 ed.), § § 550, 551, 559, 561; 2 Wheat. 66. Equity regards that as done which should have been done. 92 Ark. 66; 77 Ark. 107. Here Petty intended to give credit to another, and is bound by principles of moral rectitude and good faith to fulfill the expectations thus raised. 3 Cranch 492; 70 Cal. 386. See also 16 Cyc. 134; 79 Ark. 52.</p> <p>2. Under the facts and circumstances of this case the court of chancery is the proper forum, and appellee would not have a complete and adequate remedy at law. 1 Story’s Eq. 96; 9 Ark. 503, 504; 32 Ark. 489.</p>

<p>Appeal from Pulaski Circuit Court, Second Division; P. Guy Pulk, Judge;</p>

This case is here on appeal for the second time. The first appeal is reported in 89 Ark. 483 (Western Union Tel. Co. v. Gillis). Berta Gillis resided at DeWitt, Arkansas, and her mother resided about 20 miles from Fordy-ce, Arkansas. On the 29th day of May, 1905, the brother of Berta Gillis through FI.

Hutton, Judge; STATEMENT BY THE COURT. This is a suit on a life insurance policy. On the 28th clay of November, 1908, J. B. Dupriest made application to the American Central Life Insurance Company through Louis Lorch, its local agent at Searcy, Arkansas, for a policy of insurance upon his life for $2,000, and his wife A. H. Dupriest was named as beneficiary.

<p>1. Railroads — right-of-way—abandonment.—While nonuser by a railroad company of a right-of-way does not alone constitute an abandonment, it is evidence of an abandonment; and when, in addition to such nonuser, facts are proved and circumstances shown evincing that intention, the abandonment is established. (Page 237.)</p> <p>2. Same — proof of intent to abandon right-of-way. — The question whether a railroad company has abandoned a right-of-way acquired by it is one of intent, and such intent can be established by the acts of the company clearly indicating its purpose not to use such right-of-way and by long nonuser thereof. (Page 238.)</p> <p>3. Same — right-of-way—abandonment.—Where a .railroad company for 20 years failed to make use of a right-of-way granted to it for the purpose solely of constructing a railroad, and without consideration conveyed such right-of-way to another company, it will be held to have abandoned it. (Page 238.)</p> <p>4. Estoppel — does not arise when. — Where a landowner conveyed to one railway company a right-of-way over his land, the fact that, in a contract with defendant railroad company, such grant was recognized did not estop the landowner from insisting that the first mentioned railroad company had abandoned such right-of-way if defendant did not in any way act to its injury in reliance upon such recognition. (Page 239.)</p> <p>5. Damages — market value.. — The market value of property taken for a public use is to be determined from its availability for all valuable purposes. Thus, in an. action to determine the value of property taken for a right-of-way of a railroad, it is competent to show its advantageous location, for railroad purposes. (Page 240.)</p> <p>6. Same — evidence of market value. — In an action against a railroad company to recover the value of land taken by it for its right-of-way, it is competent to prove the cost and expense of placing any other site in that section of the county in a condition as available for railroad purposes as the property which was taken. (Page 242.)</p>

<p>Certiorari to quash order of chancellor admitting to bail; John M. Hlliott, Chancellor;</p>

<p>1. Corporation — who may question existence oe. — The existence of a ■ ■corporation, once formed, can be questioned only in a direct proceeding and at the suit of the State. (Page 251.)</p> <p>2. Same — estoppel to question existence oe. — One who -contracts with an acting corporation cannot defend himself against a claim on such contract by alleging the irregularity -of its organization. (Page 251.)</p> <p>3. Same — liability oe shareholder. — A person who has assisted in the -organization of a corporation cannot escape liability as a subscriber to its stock on the ground that it was not organized according to the requirements of the statute, as that it failed to comply with a statutory requirement that a certain- amount be paid in before commencing -business. (Page 252.)</p> <p>4. Same — liability.—(The failure of a corporation to comply with a statutory provision requiring a certain amount to be paid in before commencing business cannot be set up either .by the corporation or •by the stockholders to avoid a liability which has been- assumed by them. (Page 253.)</p> <p>5. Same — liability of shareholder — release.—The obligation of a corporator to pay the full amount of all the shares for which he has subscribed cannot be released by the company or its officers. (Page 2S3-)</p>

Wells, Judge; statement by the court. The Home Fire Insurance Company filed a petition in the county court of Dallas County, asking to be relieved from an alleged illegal assessment. It alleged that it is an insurance corporation organized under the laws of the State of Arkansas, with its domicil at Fordyee in Dallas County. That the county board of equalization increased the assessed valuation of its capital stock and surplus from $1,000 to $162,500 for the taxes of 1909.

<p>Appeal from Phillips Chancery Court; Bdward D. Robertson, Chancellor;</p> <p>1. The purchaser at a foreclosure sale under the powers contained in the deed of trust is entitled to the possession of the land during the year allowed by law for the redemption, and also to the rents and profits arising from same during that period. 66 Ark. 572; 65 Ark. 129; 92 Ark. 315.</p> <p>2. The agreement executed by Peter Deisch does not have the effect to take this case out the rule above stated, because (a) there is no consideration for its execution expressed therein, nor shown in evidence aliunde; (b) it was an undertaking by him as executor, and he is suing in his individual capacity; (c) it is not signed by four of the appellants, two of whom are minors, whose interests it cannot affect.</p> <p>1. Under the facts in this case appellants could not have maintained an action for unlawful detainer; and if they could not have maintained that action, they cannot maintain this action for rent. 33 Ark. 682; 44 Ark. 444.</p> <p>2. One who purchases at a sale under a mortgage is not entitled to recover from the mortgagor the possession of the rents and profits accrued during the year allowed for redemption where he gave the mortgagor no notice to quit and made no demand for rents and profits. 68 Ark. 586; 36 Ark. 29; 127 U. S. 494; 65 Ark. 134; McAdams on Landlord & Tenant, 41.</p> <p>3. Appellants cannot evade the force and effect of the agreement signed by Peter Deisdh not to take steps to dispossess Eugenia Bentley before January 1, 19.10, by saying that subsequently to its execution the land was sold under the powers contained in the deed of trust, and purchased by them. They were chargeable under the law with notice as to how she and her tenants held the property. 68 Ark. 586.</p>

<p>1. Fraud — rescission oe contract. — One who has been fraudulently induced to purchase or sell property or to exchange his own property • for that of another may in equity have such contract annulled and the consideration restored. (Page 268.)</p> <p>2. Same — when representations are fraudulent. — Representations to be fraudulent must be material to the contract or transaction to be avoided, and must be made by one who knows them to be false or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect. (Page 268.)</p> <p>3. Same — right To rely upon representations. — Though equity will not relieve a party from the consequences of his own carelessness, yet when a false representation is made of a fact peculiarly within the knowledge of the person making it, the one to whom it is made may rely upon its truthfulness, though the means of ascertaining its falsity were open to him. (Page 268.)</p> <p>4. Same — sale of bank stock. — A false and fraudulent representation made with intent to deceive as to material facts which necessarily affect the value of shares of stock in a corporation will avoid a sale thereof when by means thereof another was induced to purchase such shares. (Page 269.)</p> <p>5. Same — effect of referring purchaser to another. — Where one person is sent to another for information, the statements and repre- ■ sentations made by him relative to the business concerning which the information is sought are binding upon the party sending him. (Page 271.)</p>

Martineau, Chancellor; STATEMENT J3Y THE COURT. On the 21st day of June, 1907, Robert A. Furth died in the city of Little Rock, Arkansas, owning a large amount of real and personal property. He left a will in which he devised the bulk of his estate to his mother. Sam Blum was appointed and duly qualified as the executor of his will. The appellant claimed to be his widow, and instituted suit for dower in his real and personal estate.

Haden Humphreys, Chancellor; 1. Under the facts developed in this case and the law as applicable thereto, it is incumbent on appellee to show more than a substantial compliance with his contract. “When there is a wilful refusal by the contractor to perform his contract, and he wholly abandons it, and after due notice refuses to have any more to do with it, his right to recover depends upon performance of his contract without any omission so substantial in its character as to…

<p>Appeal from Garland Circuit Court; W. H. Evans, Judge;</p> <p>1. The -deed was constructively delivered. The recording of a deed is prima facie evidence of delivery to and acceptance by the grantee. 25 Ark. 225; Kirby’s Digest, § 756. There is no evidence to rebut this presumption.</p> <p>2. The facts and circumstances all show an intention to deliver and a constructive delivery. 75 Ark. 321; 52 S. W. 1028; 54 Pac. 162; 68 Pac. 607; 78 N. W. 647; 74 Ark. 104; 77 Ark. 89; 13 Cyc. 561, 568, 571, 534, 535, 748, etc.</p> <p>3. The deed being to appellant’s advantage, he will be presumed to have accepted. 77 Ark. 89; 67 N. E. 833; 3 h. R. A. 238; 78 N. W. 647.</p>

<p>1. Carriers — liability for damage by fire. — Acts 1907, p, 336, making railroad companies liable for damages caused by fire, etc., intended to make railroad companies liable for fires communicated by its locomotives and other instrumentalities used in the movement of its' trains, and did not contemplate that they should be liable for damage caused by the burning of buildings used in connection with the operation of their trains. (Page 289.)</p> <p>2. Same — «ability as warehousemen. — Where a passenger placed his trunk in a railway station, intending to take a train on the next morning, and the trunk was burned during the night, the railway company’s liability is not that of an insurer, but of a warehouseman, to take ordinary care of the commodity intrusted .to it. (Page 290.)</p>

Hutton, Judge; The testimony of A. D. Williams, offered to impeach a writing that he 'himself had made, was a complete surprise. When the losing party does not know whether testimony which takes -him 'by surprise is true or false, nor that he can rebut it, he is not bound to move for a continuance, but may set it up as a ground for new trial. 66 Ark. 612; 89 Ark. 122. On the question of surprise appellant is in no attitude -to complain.

M. Baker, Chancellor; 1. The summons served on appellant was against him personally, and not in his representative capacity. The word “administrator” following his name is only a personal description of the party sued. 1 Ark. 232; Kirby’s Dig., § 6034; 25 Ark. 9, 10. 2. The return does not show service in the suit in which judgment was rendered.

Where an excessive freight rate is demanded by the carrier, the shipper may pay it under protest and recover the excess. 4 Elliott on Railroads, § 1564 and cases cited; 2 Hutchinson on Carriers, (3 ed.) 805, § 574 and cases cited; 6 R. R. A. (N. S.) 225; 25 W. Va. 434. 2. The tariff fixed by the railroad commission does not affect interstate shipments. Whether a shipment is local or interstate depends upon the contract for transportation.

L. Matlock, Special Chancellor; Appellant is not estopped, because his claim under the deed that he is the owner is a separate and distinct cause of action, raises entirely new issues and presents an entirely different state of facts from those adjudicated in the former suit. 23 Cyc. 1297, 1298, 1302, 1304; 25 C. C. A. 469; 30 Cent.

Martineau, Chancellor; STATEMENT BY THE COURT. H. L. Rernmel, Morris M. Cohn and Guy E. Thompson, commissioners composing the Board of Street Improvement, District No. 120, in the city of Little Rock, instituted this action against the Pulaski Gas Light Company to restrain it from excavating Main Street at its intersection with Twenty-first Street, for the purpose of laying a supply pipe for natural gas.

Warner, Special Chancellor; 1. The rule of apportionment declared in the amendatory act of April 23, 1909, is unconstitutional. (a) The power of levying local assessments for local improvements is a branch of the taxing power — and of the taxing power only.

Martineau, Chancellor; 1. Appellants are entitled to .relief against the proposed cost of the improvement.

Steel, Judge; 1. The court erred in refusing to direct a verdict for appellant. The master is not the -insurer of a servant’s safety, nor is there any presumption of negligence against the master on proof -of injury. 79 Ark. 76; lb. 437; 46 Ark. 555. No negligence is shown. 86 Ark. 289; 91 Ark. 260. Presumptions cannot be indulged in. 79 Ark. 441. 2. The -court erred in refusing prayers Nos. 7 and 11. The refusal was prejudicial, as also were -the remarks of counsel. 1.

5*. Maples, Judge; The act of the appellee in placing his foot on the rerailer was the direct proximate cause of the injury, and all the facts and circumstances, as well as the admissions of appellee and his knowledge of the hazard attending the work, go to make out a clear case of contributory negligence per se on his part, in unnecessarily placing his foot on the rerailer; and this negli■gence bars recovery, even if it be conceded that the air was not working properly and…

The consignor did not part with title to the property by the shipment, but shipped it on consignment to the consignee as a factor or commission merchant. He, the consignor, alone could sue for damages to the shipment, and is the only party liable for the freight. Kirby’s Dig., § 5999; 20 So. 986; 21 So. 240. 1.

Steel, Judge; 1. The first instruction given is erroneous in that it places liability on appellant merely on proof that appellee’s injury was caused by the unsafe scaffold. It -makes appellant’s liability depend upon the occurrence of the injury, and assumes disputed facts. The giving of subsequent instructions at appellant’s request opposing -this erroneous theory would not operate to cure the defects in this instruction. 65 Ark. 64; 76 Ark. 69-73.

Humphries, Chancellor; The sale of timber conveys an interest in the land on which it grows. 69 Ark. 447; 57 Ark. 340; 73 Ark. 331; 77 Ark. 119. And, to be valid under the statute of frauds, such sale must be evidenced by deed. 10 N. Y. 114; 1 Denio 550; 2 M. & W. 248; 74 Miss. 484; 21 So. 409; 61 Mo. App. 409; 50 O. St. 57; 33 N. E. 90; 27 Vt. 157; 49 N. H. 204; 43 Wis. 566; 2 Tenn. Gh. 232; 99 N. C. 495; 63 Ark. 10; Jones on Conveyancing, § § 1600, 1601.

Haden Humphreys, Chancellor; 1. Neither conveyances, nor color of title, nor payment of taxes, nor all combined, can give title under the statute of limitations. There must be proof of adverse possession for the requisite time. There is no such evidence here. 45 Ark. 81. 2. An acknowledgment of satisfaction of a mortgage prima facie imports extinguishment of the mortgage debt, and the burden to the contrary rests on the creditor. 42 Ark. 61. 3.

<p>Appeal from Carroll Circuit Court, Western District; Joseph S. Maples, Judge;</p>

Carter, Judge; 1. Rogers, having ceased to be a stockholder on January 8, 1909, by sale of his stock to J. O. Smith on that day, is not liable. He transmitted to Smith his certificate of stock, duly signed in blank — did all that he was called upon to do to have the stock transferred to the purchaser.

Shaver, Chancellor; STATEMENT BY THE COURT. About the 1st of January, 1905, Charles Olentine and Elmer E. Shock conceived the plan of buying up certain timber lands in Pike County, Arkansas, from various persons and selling them for a profit. According to the .testimony -of Shock, each was to pay half of the purchase price, and each to have 'half of the final profits.

Robertson, Chancellor; 1. If the creation of a trust is not manifested by any writing and no fraud has been practiced in obtaining the title, the trust must arise from the payment of the purchase money, and not from any agreement. >50 Ark. 76; 13 Ark. 183; 75 Ark. 40; 76 Ark. 14; 49 Ark. 416; 72 Ark. 456; Tiedeman, Real Prop. 500; 4 Ballard, Real Estate, 738. 2.

On November 12, 1908, at about 5 :3o o’clock p. m., appellee, while attempting to drive his team an-d wagon across the tracks of appellant’s line of railroad from south to north at a public crossing in Plumerville, Ark., was struck by a west-bound local freight train, and was permanently injured. He brought suit for damages, alleging negligence on the part of appellant’s employees in operating the train.

<p>Appeal from Craighead Circuit Court, Jonesboro District; Frank Smith, Judge;</p> <p>The indictment is brought, and this case is prosecuted, under authority of § 2100, Kirby’s Digest. The essential elements of the 'crime are, the larceny by the accused of the property of another, in a foreign jurisdiction, within the statutory period of limitations, and the subsequent transportation of the same by the accused into this State. Since the indictment fails to allege all these essentials, it is fatally defective, and the demurrer should have been sustained.</p> <p>We confess error, in this: 1. Under the statute, Kirby’s Dig., § 2100, an accessory after the fact to the crime of larceny committed in Tennessee cannot be indicted and tried in this State. 2. If an accessory to the crime of larceny committed in the State of Tennessee is subject to indictment and conviction in this State, he must be indicted as an accessory, and not as a principal. 76 Ark. 513; 91 Ark. 5; 65 Ark. 82; Kirby’s Dig., § 1563; Wharton on Homicide, § § 67, 68; 3 Russell on Crimes, 145; 1 Bishop, Crim. Daw, (8 ed.), § 692; Id. § § 137-142; 1 McClain, § § 552-553; 109 111. 565; 28 Tex. App. 1; 38 Ark. 568.</p>

<p>1. Bill or review — new matter.- — Where a bill of review is for newly discovered matter, the rule is that the matter must be such as could not have been discovered, by the use of reasonable diligence. (Page 4I7-)</p> <p>2. Same- — laches.—As the granting of leave to file a bill or review 'for newly -discovered evidence is discretionary, such leave should be refused when the party has failed to act with-in a reasonable time after discovery of the new matter, although there has been no other change in the situation of the parties to the decree. (Page 419.)</p>

Grace, Judge; 1. Under the undisputed evidence the court should have directed a verdict for the appellant. The law holds a livery stable keeper only to the use of ordinary care of the animals placed in his care, and he is liable for injuries to such animals only when such injuries are occasioned by his negligence. 87 Ark. 318-20; 37 S. W. 65.

Meeks, Judge; The circuit court had no original jurisdiction of this cause,, and should have sustained the demurrer to the complaint.

<p>a. Insurance — benefit certificate — construction.—A contract of a mutual benefit society, as witnessed by its certificate issued to a member "and by its constitution relating thereto, should be construed according to the plain and obvious meaning of the provisions and with a view to accomplish the purpose for which the society is maintained and persons become members thereof. (Page 429.)</p> <p>n. Same — benefit certificated-construction. — A contract of a mutual benefit society should be construed most strongly against the insurer, and so as not to defeat a recovery by the beneficiary if it is susceptible of a meaning that will permit a recovery. (Page 430.)</p> <p>.3. Same — benefit certificate — totae disabieity. — Under a benefit certificate permitting a recovery of the full amount of insurance whenever the beneficiary becomes totally disabled on account of “permanent paralysis of either extremities,” a beneficiary is entitled to recover such amount whenever he becomes totally disabled on account of permanent paralysis of an arm. (Page 430.)</p> <p>4- Same — when totae disabieity exists. — Total disability of an insured exists, although he is able to perform occasional acts, if he is unable •to do any substantial portion of the work connected with the occupation in which he was employed at the time the insurance was taken. (Page 431-)</p> <p>.5. Same — directing verdict. — Where the undisputed testimony established that the insured was permanently paralyzed in his left hand, and was therefore compelled to retire from his occupation, though one witness testified that without an operation his arm was permanently paralyzed, and the undisputed proof was that his condition was such that he was unable to procure the medical attention which might relieve his paralysis, it was not error to direct a verdict in his favor as being permanently disabled. (Page 431.)</p>

<p>Appeal from Craighead Chancery Court, Western District; Bdward D. Robertson, Chancellor;</p> <p>If there was a reservation of title by Findley he waived it and made the sale absolute when he accepted the second note and took a mortgage to secure payment. This was an election from which he cannot now recede. ■ Appellant’s mortgage was prior to Findley’s, not only in time of execution, but also in time of filing. Appellant therefore has the superior lien. 11 Am. & Eng. Ann. Cases, 545, and cases cited; 65 Ark. 380; 76 Ark. 373; 64 Ark. 213; 78 Ark. 569; 82 Ark. 347; 48 Ark. 160; 88 Ark. 99.</p> <p>The mortgage was executed and delivered to appellee by Henry at the same instant the former parted with his rights under the reserved title. The transition of his rights as the holder of a reserved title to his rights as a mortgagee was instanter, and all constituted but one transaction. 32 Ark. 258; 50 Ark. 108; 23 Am. & Eng. Ene. of D. 466 et seq.; 8 Minn. 178; 122 111. 657-</p>

Bvms, Judge; The court should have directed a verdict for appellant. Deceased was a trespasser when he elected to cross the tracks of the appellant company at a point other than one of the crossings provided 'by appellant as required by statute, Kirby’s Di-g., § 6681, as amended by act approved February 14, 1905. 83 Ark. 301.

Humphries, Chancellor; statement by the court. C. J. Mitchell instituted this action in chancery court against Ad Fish to recover the profits due her from an alleged partnership between them.

Ma/rtineau, Chancellor; 1. If Hill was insane as claimed, the right to redeem was personal to him, and did not descend to his widow and heirs. The strict letter of the statute controls, and no one has a right to redeem after two years unless specifically so provided. Kirby’s Dig- § 7095; 51 Ark. 453J Id. 430; Id. 476; 17 Ark. 654; 52 Ark. 132; 66 Ark. 141; 77 Ark. 190; 70 Ark. 408; 92 Ala. 577; 94 Ala. 481; 84 Ark. 617. 2.

Barker Chancellor; STATEMENT BY THE COURT. This suit was originally brought by Raymond Hudson against his mother, Mrs. S. E. Newton, and the sureties on her bond, to surcharge and falsify her settlements as the administratrix of the estate of her husband, John B. Hudson, deceased, father of Raymond Hudson.

Fran-cis Chancery Court; Rdzvard D. Robertson, Chancellor; No tax shall be levied except in pursuance of -law. Art. 16, § 11, Const.; art. 7, § 30, Id. The total amount of appropriations for all -county purposes for any one year shall not exceed 90 per cent, of the taxes levied for that year. Kirby’s Dig., § 1500. See also Id., § 1499, su-bdiv. 8. An appropriation -in excess of -constitutional or statutorv limitation is void. 27 Am. & Eng.

H. Evans, Judge; 1. Appellant’s request for a peremptory instruction should have been given. Where, as in this case, the undisputed evidence ■shows that the plaintiff was guilty of contributory negligence, it is the duty of the court to declare that he has no cause of action. The facts being undisputed, the question of contributory negligence becomes one of law. 76 Ark. 12; 61 Ark. 549; 65 Ark. 235; 69 Ark. 134; 63 Ark. 427; 72 Ark. 572. 2.

<p>Appeal from Ouachita Circuit Court; George W. Hays, Judge;</p> <p>1. The law of this case is settled in 85 Ark. 12. There was no public necessity for a station at Ogamaw, and the Legislature cannot arbitrarily and unreasonably require one constructed. 172 U. S. 269.</p> <p>2. No notice was given of the special act as required by law. General laws of the State cannot be suspended by special acts. Const, art. 5, § 24; 36 Ark. 166; 84 N. E. 3; 4 Am. Rep. 576; 18 L. R. A. 95; 86 Miss. 72; 38 So. 732.</p> <p>3. The act is in violation of the Fourteenth Amendment to the Constitution of the United States.</p> <p>1. The State has, in the exercise of its police power, the right to make regulations which, although indirectly affecting interstate commerce, do not constitute a regulation thereof, or a burden thereon. 124 U. S. 465; 128 Id. 96; 93 Id. 99; 166 Id. 427; 133 Id. 286; 163 Id. 299; 187 Id. 137; 169 Id. 613; 216 Id. 27; 207 Id. 328; 216 Id. 262.</p> <p>2. The act does not deprive appellant of its property without due process of law, nor without compensation, and is not violative of the Fourteenth Amendment to the Constitution of the United States. 85 Ark. 12, 181; 91 Ark. 362; 54 Ark. 112; 156 U. S. 649; 142 Id. 449; 109 La. Ann. 263. An act is not unreasonable because a station is unremunerative. 13 Cyc. 140-144-5; 3 Wood on Railroads, § § 287c, 495; 179 U. S. 287; 166 U. S. 427; 206 U. S. 1; 48 So. 236; 85 Ark. 23.</p> <p>3. The giving of notice is a matter which is addressed to the Legislature and not to the courts. 48 Ark. 370.</p> <p>4. The act does not suspend the operation of any general law. 59 Ark. 513; 61 Id. 21; 35 Id. 69; 49 Id. 291; 49 Id. 325.</p>

<p>Appeal from Garland Chancery Court; Alphonso Curl, Chancellor;</p> <p>Appellant had an interest in the property and should have been made a party. Kirby’s Digest, § 6006; Story, Eq. PL, § 76; 37 Ark. 511; 59 Ark. 190; 56 Ark. 391, 397; 68 Ark. 171, 177; 74 Ark. 57; 70 N. W. 834.</p> <p>The title to the real estate is not involved in this case. Appellant was not a party to the contract, and is not a necessary party. 56 Ark. 370. The only question is whether appellees have the right to the delivery of the deed. This does not affect the title nor -the interest of any third parties.</p>

After they became disarranged en route, it was appellant’s duty to have them placed in proper order. This was one of the purposes for which appellee was employed. In one sense it was his duty to make the place safe, and appellant could only have it made safe through the instrumentality of appellee or some other workman, and he assumed the hazards of his employment. 76 Ark. 6g; 82 Ark. 534; 85 Ark. 600; 89 Ark. 50; 90 Ark. 387. See also 84 Fed. 84; 34 S. W. 362.

Wood, Chancellor; STATEMENT BY THE COURT. On the 16th day of July, 1904, W. L. Howell executed to Dr. J. L,. Parker a deed to 320 acres of land in Ashley County, Arkansas. The consideration for the deed was that Dr. Parker should take care of Howell for the remainder of his natural life, and pay $150 annually. Parker executed to Howell his note of the same date as the deed, and due on or before the 1st day of January, 1905.

<p>1. Eminent domain — private use. — The right of eminent domain cannot be exercised for the purpose of acquiring property for private use. (Page 499.)</p> <p>2. Same — public use question eor courts. — It is a judicial question for the courts to determine whether a particular use for which private • property is about to be-taken under‘legislative sanction is a public one. (Page 499.)</p> <p>3. Same — when railroad public. — Although the principal object in constructing. a certain railroad may be the development of the coal mine of a certain corporation, yet, if the public has the right to use the railroad for shipping purposes, the railroad is a public highway and entitled to exercise the power of eminent domain. (Page 500.)</p>

<p>1. ‘Counterclaim and set-off — burden oe proof. — A defendant who sets up a counterclaim has the burden of proving the same. (Page 503.)</p> <p>2. Contract — breach.—Under a contract whereby defendant was given the exclusive right to sell plaintiff’s oil in Arkansas, no breach is proved by showing that plaintiff in good faith sold oil to a purchaser in another State and at such purchaser’s request subsequently shipped such oil to Arkansas. (Page 504)</p>

Louis, Iron Mountain & Southern Railway Company to recover damages for wrongful expulsion from a train before reaching her destination. Plaintiff recovered judgment for damages, and the defendant appealed. There is no evidence that the appellee received any physical injury.

Wallace, Chancellor; Upon the sale of chattels for a fair price by one who is in possession, the law implies a warranty of title, and the seller is answerable to the purchaser if the chattels be taken from him by one having a better title than the seller, whether the seller knew of the defect in his title or not. 19 Ark. 460, and authorities cited.

<p>Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk, Judge;</p> <p>STATEMENT BY THE COURT. ,</p> <p>This suit was brought by appellee to recover damages for breach of a contract of sale of cotton seed meal, for delivery in October and November, 1909, to T. H. Bunch Company. It was alleged that the contract was made by appellant with said T. IT. Bunch Company, which was, at the suit of a stockholder to wind up the affairs of said concern as an insolvent corporation, placed in the hands of receivers on the 17th day of September, 1909, by the Pulaski Chancery Court, with authority to dispose of all its assets; that appellee purchased said contract from said receivers at a sale duly made by order of said chancery court, paying a valuable consideration therefor, and same was duly transferred and assigned to appellee; that appellant refused and failed to perform said contract and ship and deliver .the meal thereunder upon demand of appellee, to its damage in the sum of $1,500.</p> <p>Appellant admitted making the contract of sale to T. H. Bunch Company at -the price specified, the appointment of receivers ¡by the Pulaski Chancery Court to take charge and dispose of the assets of said company as alleged, but stated “that said order was made without authority of law and void;” alleged that, immediately upon ascertaining that receivers had been appointed for said T. H. Bunch Company on September 18, 1909, it notified said company and the receivers that it cancelled any and all contracts and obligations it had or may have had with said company; that when the business of said T. H. Bunch Company was placed in the hanas of receivers as .aforesaid, its contract for the sale of'said cotton seed meal was thereby cancelled and annulled; denied that appellee purchased the contract in October, 1909, for value; denied that it was bound by said contract of that time; stated that it had, prior thereto, cancelled the contract, and that it was annulled by the placing of said Bunch Company, insolvent, in the hands of receivers; denied the authority of the receivers to transfer the contract to appellee, that it was transferred to it, and that appellee had any interest in same; admitted its refusal to carry out the contract with appellee, and denied that it was damaged by such refusal, and reserved a demurrer to the complaint, setting up five grounds. The following amendment to the answer was filed: “That T. H. Bunch Company, with which it is alleged in the complaint that this defendant made a contract to sell three hundred (300) tons of cotton seed meal, etc., at the time of said alleged contract was a corporation engaged in purchasing and manufacturing corn, oats and other grain into meal, flour and other products and putting same upon the market and selling same, and in other mercantile pursuits; that at the time of its alleged purchase of said cotton seed meal it was engaged in that business; that the amount of its assets was $100,000 or more, and that its indebtedness amounts to $200,000 or more, and -the receivers alleged to have been appointed to taire charge of said estate were appointed without authority of law, and that the alleged transfer from said alleged receivers to the said F. E. Morse & Company was without authority of law, and such sale was therefore void.</p> <p>“It further states that, since the filing of said complaint, said T. H. Bunch Company has been declared a bankrupt by the United States Circuit Court for the Eastern Division of the Eastern District of Arkansas, and said alleged receivers, by order and judgment of the court, were ordered and directed to turn over all the property and assets of said T. H. Bunch Company to the trustee in bankruptcy, and by the judgment and decree of the court it was held in said cause that all acts and things which had been done by or through said alleged receivers were without force and effect, and were an absolute nullity; that the appointment was without authority of law and void; it therefore alleges that the plaintiff has no title to the contract sued on, and , this defendant is not liable under the same.”</p> <p>Upon the issues thus made up a jury was waived by the parties, and the cause submitted to the court upon the agreed statement of facts.</p> <p>The proof shows that on August 1, 1909, the T. H. Bunch Company, a corporation of the State of Arkansas, was engaged in the city of Little Rock in the business of buying and selling merchandise, produce and commodities and handling goods on commission; that appellant was a corporation of Tennessee engaged in business in Arkansas as a foreign corporation manufacturing and selling cotton seed products. On the nth of August the Bunch Company over the ’phone offered to buy cotton seed meal of appellant company at a certain price, October and November delivery, to be shipped on dates designated by buyer in said months. This offer was accepted by telegram on 12th, and confirmed by letter on 13th, and by following letter on August 14:</p> <p>“The T. H. Bunch Co., Little Rock, Ark.</p> <p>“Gentlemen: — This will confirm our sale to you, under date of August 12 of three hundred (300) tons cotton seed meal to analyze 7 3-4 to 8% at $24 per ton, f. O. b. Jonesboro, Ark. Shipment 200 tons October, xoo tons November. It is understood that you may order screened, cracked cake on this contract at the same price. “Yours very truly,.</p> <p>“Roberts Cotton Oil Co.</p> <p>“Jno. E. Roberts, Sec. and Treas..”</p> <p>Indorsement on letter:</p> <p>“For value we hereby assign all our rights and title to this contract to F. E. Morse & Co.</p> <p>“Cochran & Kavanaugh, Receivers for T. H. Bunch Co.</p> <p>“By C. C. Kavanaugh.”</p> <p>After said contract was made, and prior to September 18, the market began to advance, and said meal was worth for October and November delivery between three and four dollars a ton more than the contract price. On September 18 a stockholder of the Bunch Company applied to the Pxdaski Chancery Court for a receiver to take charge of the assets of said company and wind up its affairs, alleging that the corporation was unable to pay its debts as they matured and was insolvent, that it had much perishable property on hand that should be put into the custody of some proper person pending the winding up of affairs of said corporation. The court appointed H. K. Cochran and C. C. Kavanaugh receivers, setting forth in the order all the matters enumerated in section 6348 of Kirby’s Digest of the statutes of Arkansas. On the same day appellant wired T. H. Bunch Company: “Any contract or obligation we have with you is can-celled and at an end,” and wrote a letter reciting the telegram, and “which we confirm, and would say that we cannot have any contract or business with a defunct firm.” On the 23d the receivers notified appellant they would insist upon the performance of the contract, and it answered denying the right of the receivers to hold it to the contract and claiming- it was cancelled. On the 29th the receivers again notified appellant it would be held to the contract, that the meal had been sold to the Bunch Company, >and it was their purpose to buy in the open market meal to fill the sales orders made against this purchase. The meal purchased for future delivery had been resold by Bunch Company before the appointment of receivers. Bunch Company had purchased meal from others besides appellant and sold against all its purchases. On October 10 the receivers represented to the chancery court that they could sell to F. E. Morse & Company, appellee, all their contracts for the purchase of cotton seed meal for $1,000, the purchaser assuming the performance of all their contracts for the sale of meal. The court ordered the sale, the contract sued on herein being specifically described in the order, which was made to said appellee, the purchase money paid, and the sale duly reported to the court, and by it confirmed on October 12, 1909. The receivers indorsed their assignment and transfer upon the contract, appellant’s letter of August 14, Í909, set out above. On the 12th, appellee directed appellant to deliver 200 tons of meal in accordance with the terms of the contract, which it refused to do, returned the shipping instructions, and advised that it had no contract with the receivers of the Bunch Company. On November 1 it ordered appellant to deliver 100 tons of meal, which it refused to do, claiming the contract had been cancelled. Appellee, after the refusals, went into the market and bought the meal, having to pay therefor for the 200 tons $781.50 and for the 100 tons $420.00 more than the contract price. The market price of this meal at Jonesboro f. o. b. on cars on October 13, 1909, was $4 over the contract price and on November 1 the same. The agreed statement concludes thus: “That on January 17, 1910, three creditors of the T. H. Bunch Company filed a petition in bankruptcy against the T. H. Bunch Company, alleging that it was insolvent, and had a receiver appointed by the United States court, because of insolvency, and within 30 days subsequent to that date an adjudication was had in said bankruptcy court, by which the T. H. Bunch Company was adjudged a bankrupt, and thereupon a receiver was appointed, and a petition was presented to the Pulaski Chancery Court, asking that the assets of the bankrupt be turned over to the receiver in bankruptcy, and this was done. That thereafter said bankruptcy court made an order confirming the acts of the receivers appointed by the State court, among said acts confirmed being the sale of the contract of the Roberts Cotton Oil Company to F. E. Morse & Company, as hereinbefore described; that the act of the bankruptcy court in confirming said contract was done without notice to this defendant and without its knowledge.”</p> <p>The court made certain declarations of law, and rendered judgment against appellant for $1,200, and it appealed.</p> <p>1. The bankruptcy act of Congress of July 1, 1898, superseded the State law on insolvency, whether the bankrupt be an individual or a corporation. 88 Ark. 519, and cases cited; 190 U. S. 1; 127 Fed. 180; 143 Fed. 665; 143 Fed. 395; 78 N. W. 1038; 57 Cal. 197; 92 Fed. 329.</p> <p>2. The receivers appointed by the chancery court had no power to assign the contract which T. H. Bunch Company had with appellant. It was a personal contract, and, besides, when the Bunch Company became insolvent and was placed in the hands of receivers, it was in no attitude to enforce the contract; and to be binding a contract must be binding upon ¡both parties— mutual and not unilateral. 123 N. Y. 738; 41 Am. Rep. 517; 25 Id. 541; 55 Pa. St. 504; 35 Cal. 291; 61 N. E. 12; 81 Fed. 282; hi Am. St. Rep. 171; 40 N. E. 410; 55 Mich. 629. After the company went into the hands of receivers, subsequent actions by the receivers were void, and the order of the Federal court approving such transfer was void, because it was done without authority. 4 Gill & Johns. (Mid.) 467; 21 Wend. (N. Y.)( 139; 13 Ea. Ann. 419; 18 N. H. 293; 21 Watts & S. (Pa.) 221; 34 Mich. 89.</p> <p>1. Action under the State statute for winding up a corporation on the suit of the stockholders is not forbidden by the mere passage of the bankruptcy act. The facts in the Hickman case, 88 Ark. 519, relied on by appellant, were essentially different from the facts in this case. 190 U. S. 1; 72 Pac. 398; 4 Wheat. 102; 12 Id. 213; 68 Pac. 814; 55 Ad. 868; 20 Wash. 545; 3 Dill. 477; 5 S. C. 159. It has been held that where an attempt was made by a debtor to malee a voluntary assignment, such assignment was not void, but that proceedings under it would be superseded by proceedings under the bankruptcy law. 91 U. S. 496; 108 U. S. 379. See also 59 S. W. 297; 76 Pac. 934; 51 S. E. 466; 96 Md. 341; 53 Atl. 934; 66 S. E. 776; no Fed. 927; 112 Fed. 407; 159 Fed. 414; 123 Fed. 921; 154 Fed. 761.</p> <p>2. A vendor has no right to rescind a contract merely because the vendee has become insolvent. 68 111. App. 131; 55 N. E. 941-4; 100 N. Y. 121; 47 N. Y. Supp. 383; 91 N. Y. 153, 165, 166; 1 Clark, Chancery, 123. When the vendor repudiates the contract, a tender is not necessary. 13 Ark. 437; Hunt on Tender, § § 55, 56; 79 Tex. 272; 1 Pet. 455; 74 N. W. 1057; 68 Ark. 505, 521; 139 Mass. 133.</p> <p>3. The contract was assignable. It was for the sale of a specified amount of cotton seed meal for a specified price. There was no personal element in it. Kirby’s Digest, § 509; 1 Crawford’s Dig. 171; 3 Id. 94.</p>

<p>Appeal from Mississippi Chancery Court, Osceola District; Edward D. Robertson, Chancellor;</p> <p>statement by the court.</p> <p>On the 28th day of October, 1907, S'. N. Clement entered into a contract with Ford Hardwood Lumber Company, .a corporation of Tennessee, by which he agreed to erect a mill at a certain location and to saw for the corporation certain timber which the evidence showed amounted to 11,000,000 feet on lands described in contract. He was to saw the timber into lumber in a “first-class” manner and load same on tram cars for the sum of $3.50 per thousand feet, log scale. The corporation agreed to have the logs delivered to Clement’s mill, and to use its “best endeavors” to keep the mill supplied with logs, and to place the logs in such shape as to be readily handled by cable for drawing the logs into the mill. The payments were to be made on the 10th of each month for all logs sawed the preceding month. In case the corporation did not furnish sufficient tram cars, then Clement was to “bulk the lumber on. platform, and the corporation was to then load same at its own expense, such logs as were quarter sawed were to be paid for at the rate of $7 per thousand feet. In January, 1909, S. N. Clement filed his complaint against appellants in the chancery court, in which he set out the contract ; alleged that the parties entered upon the performance of it; that he had fully performed the contract on his part by erecting the mill and sawing the logs that had been delivered to him by appellants “in all respects as provided in said contract;” that appellants, after the contract was made, disposed of half the timber they had agreed to deliver to him; that they removed ■their log camp from the other lands described in the contract, took their teams elsewhere and wholly abandoned performance of said contract, failing and refusing to keep, or to endeavor to keep, said mill supplied with logs. Fie alleged that the cost of sawing logs under the .contract had been less than $1.50 per thousand feet, and that the cost of sawing the logs yet to be delivered would not exceed $1.50 per thousand feet. He alleged that the Ford Hardwood Lumber Company was insolvent, that it was a dummy corporation, and was contrived and used solely as a means of protecting E. M. Ford from personal liability for his obligations; that E. M. Ford has never paid any money to the corporation for the amount of the capital stock subscribed by him, and still owed the entire amount thereof. There were allegations that the corporation was a foreign corporation, and that it had not complied with the laws of this State, and was not authorized to do business in Arkansas; that all the stockholders were nonresidents, and only E. M. Ford had any property in this State.</p> <p>S. N. Clement further alleged that at the time the contract was made E. M. Ford represented to him that the corporation, Ford Hardwood Lumber Company, was the owner of all the timber described in the contract; that said representation was made with the intent that S. N. Clement should act upon it; that Clement did believe and act upon the representation by making the contract and erecting the mill and sawing the logs at great expense as alleged. He averred that the legal title to the land and timber described in the contract was in E. M. Ford, as he well knew at the time the contract was made.</p> <p>The prayer of the complaint was that S. N. Clement have a decree for damages in the sum of $21,000; that E. M. Ford be adjudged to pay the amount of his subscription to the capital stock of the corporation, and that same be applied to the satisfaction of the decree herein; that the equitable title in the lands described in the complaint be subjected to the payment of any judgment obtained by Clement; and that he have all other proper relief.</p> <p>The appellant, Ford Flardwood Lumber Company, answered, admitting that it was a corporation of Tennessee, and that it entered into the contract with Clement. It admitted that E. M. Ford never paid any money to the corporation for the amount of the capital stock subscribed by him, but alleged that he paid all the capital stock in property. It admitted that all the stockholders were nonresidents, and that none of them except E. M. Ford had any property in Arkansas. It denied all the other allegations of the complaint and set up the following:</p> <p>“That the corporation was organized in good faith, and that E. M. Ford, who is the chief stockholder in said corporation, was the owner of certain timber in Mississippi County, Arkansas, and in the State of Mississippi, and when the said corporation was organized, and in payment of said stock therein, he credited on the books of the said corporation all of the said timber so transferred by him in payment of said stock, and that, when advised that said timber should be conveyed by a deed, the said Ford executed and delivered to said corporation his deed, conveying all of said timber, but after the organization of said corporation and the issuance of said stock by him in payment of said timber, this defendant has had absolute control and charge of said timber, and the defendant, E. M. Ford, has never in his individual capacity claimed any interest therein nor sought to control or dispose of the same. This defendant further states' that when plaintiff undertook to erect his mill upon said land, same was so erected in such an unworkmanlike manner that said mill was incapable of sawing lumber in such a way that it was of any value, but that it sawed unevenly and made it of such value on account of inferior grade that this defendant could not receive it, and that the defendant was compelled to, and did, purchase additional machinery for the plaintiff, and the delay in the proper erection of said mill by the plaintiff and his inability to saw and deliver to this defendant lumber as per its contract resulted in the loss to this defendant of the sum of $5,000, and this plaintiff, after sawing approximately 500,000 feet of logs for this defendant, was never in a position to comply with his contract in any respect.</p> <p>“This defendant further states that it entered into the contract with the plaintiff in good faith; that it was the owner of 6,000,000 feet of timber described therein, and states that it contracted for the timber on said section 16, but was unable to complete said contract, but expected to deliver to the plaintiff the amount of timber of the kind growing upon said section 16 from other land, had not the plaintiff put it beyond his power to carry out the terms of said contract.”</p> <p>E. M. Ford answered and admitted that he was and always, had been the holder of practically all of the capital stock of Ford Hardwood Lumber Company. He admitted that he had never paid in money the amount of the capital stock subscribed by him, but denied that he still owed for the whole or any portion thereof. He admitted that the title to the land and timber at the time said contract was made stood in his name, but says that title to timber was then and 'at all times held for the use and benefit of the Ford Hardwood Lumber Company, and was after-wards transferred to said corporation. He denied all the other allegations of the complaint, and concluded his answer with an averment that he entered into the contract for the Ford Lumber Company as its president, and that all of his acts were in his representative capacity as president of the lumber company, and not for himself individually.</p> <p>Subsequent to this W. E. Ammons and R. H. Clement were by consent of the parties .made plaintiffs also, and joined in all the allegations of the original complaint, and prayed that the court would grant them the relief therein prayed if the court was of the opinion that they were entitled to such relief. Attachments were issued and levied upon the lands as the property of appellants.</p> <p>The court, after hearing the evidence, found that S. N'. Clement made an arrangement with W. E. Ammons and H. C. Clement by which the latter were to take part of the profits of the performance of the contract; that S. N. Clement was entitled to recover for the use of W. E. Ammons and’ Robert H. Clement the sum of $9,000 damages for breach of contract by the appellants; and rendered judgment against appellants in favor of appellees for that sum, and sustained the attachment, and directed the property attached sold to satisfy the judgment, The appellants have duly prosecuted this appeal.</p> <p>1. Clement had no right to elect to declare a forfeiture, as his contract had terminated, and he was released. Clark on Contracts, pp. 5x0, 527-9-524.</p> <p>2. The failure to furnish logs was not a breach of the contract; it was only a temporary cessation. The company was only to use its best endeavors to furnish logs. 9 Cyc. 579; lb. 587; 66 Ala. 189.</p> <p>3. No notice was given before suit; this was necessary. 137 U. S. 78; 128 Ala. 221; 63 Kans. 43; 61 Pac. 109; 68 N. J. R. 31; 56 Pac. 1021; 63 Kan. 745; 55 R. R. A. 706; 56 Atl. 672; 52 Atl. 306.</p> <p>4. Assuming that there was a breach of the contract obligation to use its “best endeavors,” what are the consequences? The contract was divisible. 119 Ala. 52. The words “best endeavors” simply mean that the company would use all possible effort to log the mill and would do so, if able. 62 Am. St. 38; 3 Rans. (N. Y.) 520; 13 So. 343; 33 Conn. 1; 11 W. Va. 158; 58 Md. 261; 5 Cush. (Mass.) 156.</p> <p>5. The contract being divisible, plaintiff was merely entitled to damages for the delay sustained to the time of bringing the suit. 110 N. C. 351; 9 Cyc. 648; 47 N. J. R. 290-308; 9 Cyc. 649. The evidence shows there was no design to abandon the contract. 30 A. & E. Ene. R. 1261; 113 N. W. 856.</p> <p>6. Ammons and Clement had no right to sue.</p> <p>7. E. M. Ford was not personally liable for the debts of the corporation. 2 Oh. 323; 9 Rea 694. The owner of all or substantially all of the stock in a corporation is not liable for its debts. 92 Fed. 735; 43 Kan. 225; 4 Atl. 404; 10 Pac. 17; 52 Mich 87.</p> <p>8. The damages are excessive. Compensation is limited to such injuries as results of the breach as on the face of the contract or by special notice must be held to have been in contemplation of the parties. The expected profits were not proved. Sedgwick on Damages, c. 4; R. c. 5, § 170-171-4.</p> <p>1. The company was bound under the contract to furnish logs. Whatever “best endeavors” may mean, Ford must have made an honest effort to keep the mill supplied. A mere failure to get a good price for lumber would not justify his failure or refusal. 46 W. Va. 426; 7 H. & N. 92. The contract should be construed most strongly against appellants. 90 Ark. 256.</p> <p>2. The evidence shows a total breach of the contract. A waiver of a breach is not a waiver of damages. 3 Page on Contracts, § 1509; 78 Ark. 336; 153 U. S. 550.</p> <p>3. Ford was personally liable — he was the corporation. 1 L. R. A. (N. S.) 176. He had never paid for his stock. 2 Cook on Corp., § 716; 54 Ark. 68; 146 U. S. 703; 88 Tenn. 476; 17 Fed. 48; 2i A. & E. Enc. (2 ed.) 897 et seq.</p> <p>4. Plaintiff is entitled to recover the profits which the evidence shows he would reasonably have earned. 91 Ark. 427; 129 S. W. 805; 80 Ark. 228; 78 Id. 336; 69 Id. 219.</p>

Martineau, Chancellor; statement by the court. J. A. Watkins was appointed receiver by the Eonoke Chancery Count to take charge of the assets of the Meto Valley Railway Company, an insolvent corporation, f-o-r the purpose of distributing these assets among the creditors of such -corporation under the provisions of sections 949 to- 952, inclusive, of Kinby’s Digest.

Martineau, Chancellor; statement by the court. Appellee bought of L. A. Dunn lot 4, block 1, Ferndale Addition to Eittle Rock, under a contract of sale which provided that appellee should pay for the lot the sum of $550, of which $50 was to be paid in cash and the balance in fifty notes of $10 each, payable monthly with 8 per cent, interest.

Omitting the caption, the complaint is as follows: “Comes the plaintiff herein and for cause of action against said defendant states that on the 16th day of November, 1909, he rented to the defendant, J. C. Lindsey, for the crop season of 1910, certain parts of his farm in section 16, township 21 north, range 5 east, in Clay County, Arkansas, as evidenced by a written contract herewith attached marked ‘Exhibit A! and made part of this complaint; that the said J. C. Lindsey…

<p>1. Administration — authentication oe claims. — Claims against estates of deceased persons, capable of being asserted either in a court of law or equity, must be authenticated by affidavits of the claimants to the eifect that the claims are just and have not been paid, in whole or in part, as the case may be. (Page 548.)</p> <p>2. Same — knowledge oe claim by administrator. — Knowledge on the part of the executor or administrator that a claim is in existence cannot do away with the necessity for its authentication. (Page 548.)</p> <p>3. Same — repeal oe statute of nonclaims. — The statute of nonclaims in force at the time a debt was contracted does not control where it was repealed before the death of the debtor, as the law in force at that time governs. (Page 549.)</p> <p>4. Wills — effect of direction to pay debts.- — The direction in a will that the executor should pay all just debts does not mean that he should pay unprobated debts. (Page 549.)</p>

Appellant had a policy of fire insurance in the Ozark Insurance Company, a mutual fire .insurance company, for the sum of $1,000. The policy was in force from the 8th day of September, 1904, to the 8th day of September, 1907. On the 15th day of April, 1907, the property insured was destroyed by fire. The appellant sued the insurance company, .alleging its failure to pay the policy, and also joined in the suit the following individuals, towit: A. J. Ingle, Geo.

The situation disclosed by the evidence was one from which -different minds -could reasonably draw different conclusions as to whether or not th-e appellant was guilty of negligence. That question should -therefore have been submitted to the jury. 92 Ark. 582; Id. 554, 560. 2.

<p>Appeal from Boone Circuit Court; Brice B. Hudgins, Judge;</p> <p>1. Up to the point when deceased was struck, this case is a typical one of contributory negligence. One who of his own choice attempts to cross a railroad track ahead of a train which he knows is near and approaching, and is injured in .the attempt is guilty of such contributory negligence as will bar a recovery. 54 Ark. 431.</p> <p>2. There is no warrant, either by statute or common law, for an action by two out of ten heirs at law for their own benefit, founded on loss of support .and training during minority, occasioned by the death of the father by wrongful act of the defendant. 4 Sutherland on Damages, § 1259; Kirby’s Dig. § § 6289, 6290; S3 Ark. 117, 127.</p> <p>3. Where contributory negligence of the injured party appears from his own testimony, and he relies upon the doctrine of discovered peril, the burden is on the plaintiff to prove that the peril of the injured party was discovered in time to have prevented the injury by the use of ordinary or reasonable care, and that there was a reckless disregard of his safety and failure to use such care after such peril was discovered. 69 Ark. 380; 77 Ark. 401.</p> <p>4. The court erred in charging the jury in effect 'that the appellant would be liable if they found that, in removing the engine from over the body of Watson, “any part of said engine in so moving struck said Watson and was the cause of his injuries, and that said injuries contributed to his death.’ Deceased was a trespasser, and the measure of appellant’s duty to him was not to wilfully or wantonly injure him. 3 Elliott on Railroads, § § 1253, 1254; 52 Ark. 120; 61 Ark. 617; 36 Ark. 41; 49 Ark. 257; 50 Ark. 477, 483; 47 Ark. 497; 69 Ark. 380; 76 Ark. 10; 83 Ark. 302.</p> <p>5. The sixth instruction, .placing the burden on .the defendant to show that it used reasonable care, etc., after discovering the peril of deceased, is clearly not the law. 69 Ark. 380, 382; 86 Ark. 306; 82 Ark. 522; 83 Ark. 300.</p> <p>1. As to whether or not the evidence is sufficient to sustain the verdict, the court on appeal will draw the strongest inference in favor of the verdict that it is warranted in deducing from the evidence. 74 Ark. 478; 67 Ark. 399.</p> <p>2. No question was raised in the lower court of appellee’s right to maintain this suit, and that question can not he raised here for the first time. 71 Ark. 242; 26 Ark. 660; 70 Ark. 197; 64 Ark. 305; 43 Ark. 34.</p> <p>3. The fourth instruction is right. The proof shows that appellant negligently removed the engine from over the deceased, and the question whether it was negligently done was by the instruction submitted to the jury. 69 Ark. 383; 93 Ark. 461; 46 Ark. 523.</p> <p>4. The sixth instruction when considered in connection with the fifth given for plaintiffs and the sixth given for defendant, correctly declares the law. Deceased was attempting to cross the track at a public crossing, and was therefore not a trespasser. 93 Ark. 24. The instruction merely places the burden on the defendant where the peril is discovered in time to have prevented the injury. 62 Ark. 239; 46 Ark. 523; 74 Ark. 478.</p>

<p>Appeal from Nevada Circuit Court; Jacob M. Carter, Judge;</p> <p>1. When the agent informed Blakely that he had no right to issue other than a builder’s risk policy, this charged the church with notice of the limited power of the agent, and the court should have permitted him to answer the question as to what his instructions were. Where one dealing with an agent is aware of instructions modifying or limiting his authority, the principal is not bound by an act of the agent outside of the authority as so limited. 2 Am. & Eng. Ene. of E. (3 ed.) 970; 54 C. C. A. 293, 299; 26 Me. 84; 55 Ark. 627; 49 W. Va. 437; 42 Wis. 616, 620; 49 Ark. 323. An ¡agency and its scope may not be proved by tire declarations of the agent, but may be shown by his testimony. 80 Ark. 228; 90 Ark. 104, 106.</p> <p>2. The peremptory instruction requested by appellant should have been given. The proof of an oral contract of insurance must be full and clear. Not only must it appear that all the essentials, terms, conditions and stipulations were agreed upon, but it must be shown that it was the understanding and intention of the parties that there should be an oral contract which would for a reasonable or specified time protect the insured, and this intent and understanding must be plainly inferable from the negotiations and surrounding circumstances. Kerr on Insurance, 53.</p> <p>1. Eire insurance agents, having authority to write and deliver policies and collect premiums, have power to bind the principal in the issuance of policies, even in violation of the principal’s instructions. 63 Ark. 187; 71 Ark. 242; 74 Ark. 72; 88 Ark. 506; 55 E. R. A. 408; 25 Ark. 267.</p> <p>2. It. is true that the evidence does not affirmatvely show that each and every detail of the contract was specified in the oral agreement; but that was not necessary to constitute a valid contract for insurance. 22 L. R. A. 768; 94 U. S. 739, Law. Ed. 298, 300.</p> <p>3. Oral contracts for insurance are valid and binding. 63 Ark. 204; 67 Ark. 438.</p>

Shaver, Chancellor; STATEMENT BY The COURT. Z. R. Cotton, Charles B. Cotton, Thomas L. Cotton, Luella Weston (born Luella Cotton), Gilbert Henry Cotton and William Elmer Cotton instituted this suit in the chancery court against the Citizens’ Bank and numerous other defendants to recover the southwest quarter of the southeast quarter of section 15, township 12 south, range 32 west, in Little River County, Arkansas.

Guy Pulk, Judge; 1. McClintock’s own act in disconnecting the riser made him responsible for the injury, and he was guilty of contributory negligence which was the proximate cause of the injury.

<p>1. Wills — authority or equity To construe. — -Where a trust is created by will, equity has jurisdiction to construe the will if there is any doubtfu-l question therein. (Page 607.)</p> <p>2. Same — ambiguity—jurisdiction oe equity. — A will creating a trust to pay debts and providing that the trustee should manage the estate, without directing how it should be done, and providing that the trust should terminate when the debts were paid or the children of testrix arrive at age, is sufficiently ambiguous to justify equity in assuming jurisdiction to construe the will. (Page 608.)</p> <p>3. Same — procedure to construe. — An application to the chancery court to construe a will should be by complaint and notice, and not by an ex parte petition of the trustees, in order that all parties interested may have notice. (Page 609.)</p> <p>4. Same — construction.—Under a provision in a will impowering the trustees “to mortgage, sell or lease the lands” for the payment of the debts of the testator, there is no authority to mortgage crops, personal property, rents, etc., to secure advances to operate the plantation of the testator, or to conduct a general merchandise business, however advantageous these might be to the estate. (Page 609.)</p> <p>5. Same — construction—jurisdiction.—In a proceeding involving the construction of a will, it was error for the court virtually to assume the administration of the trust by its directions to the trustees, and ■by receiving and approving their accounts. (Page 609.)</p> <p>6. Trusts — duty of trustee to account. — When a chancery court assumes to direct the execution of a trust estate, it should require the trustees to make a strict accounting of all the assets of the estate in their hands, showing receipts and disbursements. (Page 609.)</p> <p>7. Judgments — conceusiveness.—The fact that the beneficiaries of a trust acquiesced in a decision of the chancery court refusing to remove the trustees for inefficiency will not preclude them from subsequently asking that court to remove the trustees for a similar cause.. (Page 610.)</p> <p>8. Trusts — removal of trustees. — It was not error for the chancery court to refuse to remove trustees who had been executing the trust •in accordance with that court’s directions. (Page Ó11.)</p> <p>9. Same — when trust ceases. — Under a will providing for a specific trust, and that the purposes of the trust shall be discharged and the estate in the trustees cease when the testator’s debt shall have been paid, or when the beneficiaries shall have arrived at legal age, no distribution of the trust estate among the beneficiaries should be made until such debts shall be paid or the youngest beneficiary shall arrive at majority. (Page 611.)</p> <p>10. Estoppel — acceptance of benefit. — One who accepts a benefit under a contract which he knows at the time to be unauthorized will be estopped to set up the invalidity of such contract. (Page 612.)</p> <p>11. Infancy — necessity of representation by guardian. — A decree can not be rendered against an infant defendant until a guardian ad litem has been appointed for him and an answer has been filed by such guardian. (Page 613.)</p>

<p>Appeal from Monroe Circuit Court; Eugene Lankford, Judg-e;</p> <p>When appellees paid the draft and accepted the rice from the railroad company under the bill of lading which specified the amount which should be paid, this was an acceptance of the rice upon the terms then offered by appellants, and this formed the contract between the parties. 9 Cyc. 260; Id. 245.</p> <p>Appellants’ offer was sacks of rice at $5.75 per sack, and appellees’ acceptance was of sacks of rice at that price. There is no ambiguity in the telegrams and letters on this point. The court’s finding of facts from the evidence submitted to it is conclusive. 68 Ark. 83; 70 Ark. 512.</p> <p>In the state of case presented appellants can not claim that the minds of the parties did not meet, and that, therefore, there was no contract. 9 Cyc. 252. It being the duty of appellees to lessen the damages sustained, if any, by taking the rice, and, it being necessary, in order to do so, to pay the draft, this payment, being under protest, did not constitute a waiver by appellees of the right to recoup. 9 Cyc. 462; 54 L,. R. A. 718, note; 46 Kan. 192; 81 Ga. 104; 55 N. Y. 664; 108 N. Y. 542.</p> <p>To hold that the payment of the draft under protest and under the circumstances of this case meant that a new contract for the purchase of the rice was made would be equivalent to holding that any shipper could vary the terms of his contract as to price by simply raising the price of the article sold without the consent of the purchaser.</p> <p>The most favorable view in favor of appellees that can be taken of this case is that they understood that they were buying the rice at so much per sack; but appellants understood that they were selling at so much per barrel. There was no meeting of the minds of the parties until the appellees accepted the rice knowing the price demanded by appellants. 11 L. R. A. 254; 111 N. W. 1097.</p>

Maples, Judge; The payment being a preference, and its return into the source from which it emanated, the Lloyd estate, being under coercion from the Federal court, justice required that all parties should thereby be placed in statu quo, and their relative positions prior to the preference reinstated. 1 Fed. Stat. Ann. 664; 11 Fed. 353.

Guy Fulkj Judge; STATEMENT BY THE COURT. The parties to this suit are rival lumber companies owning timber and timber lands in the same territory. To successfully operate, it was necessary to build a railroad to convey the timber to their mills.

<p>Appeal from Hempstead Chancery Court; Tames D. Shaver, Chancellor,</p> <p>statement by the court.</p> <p>This suit was by appellant to compel a specific performance of a contract of sale of block 2 in the town of Tokio, Hempstead County, Arkansas.</p> <p>It was alleged that appellant purchased said block containing lots 1 to 16 for $100, .at the time of the purchase paying $25 by check, and on August 10, 1909, paid I. N. Steuart the balance of the purchase money, $75, and got his receipt in full for the purchase money which 'described the property purchased; that a deed conveying same was demanded, and appellee refused to execute it. Damages were claimed for the removal of some rails, and a prayer for specific performance.</p> <p>I. N. Steuart denied having sold the appellant the land claimed on March 6, 1909; that he executed a receipt showing what land he purchased; that he executed to appellant on August 10, 1909, a receipt showing what lands he agreed to sell appellant; that he executed the receipt attached as an exhibit to the claim; that the same was his act and deed; that he had refused to execute to appellant a deed to the land which he agreed to sell, and that he had removed any rails therefrom. Stated that he entered into a parol contract on March 6, 1909, with appellant to sell him a tract of land in Tokio, not platted at the time, 300 feet wide by 100 feet long east of Prescott & Northwestern Railway Company’s right-of-way and north of Memphis, Paris & Gulf Railway Company’s right-of-way for $100, $25 of which was then paid, that when the other $75 was paid in August, 1909, he executed and tendered to appellant a deed conveying the land which he refused to accept.</p> <p>By way of cross complaint alleged that the land he agreed to sell appellant was part of his homestead, that his wife had not joined in the contract, and that same was void; offered to return the purchase money, and alleged that, honestly believing he had not contracted to sell appellant any other land than as described in his answer, he had in good faith erected a storehouse, of the value of $500, on the land claimed by appellant. Prayed that the contract be declared void, or that he have judgment for the improvement.</p> <p>Mrs. M. L. Steuart, his wife, filed a motion to be made a party defendant, together with an answer and cross complaint, upon which no formal action was taken. I. N. Steuart set up by amendment to his answer that the contract of sale was not in writing, and pleaded the statute of frauds.</p> <p>The testimony tended to show that I. N. Steuart, in contemplation of platting and laying out a town or village, on March 6, 1909, agreed to sell Harry Johnson, appellant, “one city block one acre or more” east of the Prescott & N. W. Railway, and north of the Memphis, P. & G. Railway with public road between same and railroads, as recited in his receipt for $25 of the $100 purchase money of that date. That he w-as a married man, and owned 187 acres of land lying contiguous, upon which his house was established and his farm. That in July, 1909, he laid off and platted about 20 acres of his farm, including the land at the intersection of said railroads, into lots and blocks for the purpose of selling it for town lots, naming it Tokio. ■ That appellant in August went to pay the balance of the purchase money for the land he had agreed to sell him, and Steuart began to talk about his not buying a full block, and a dispute arose as to the description of the land. Appellant insisted that he was.entitled to block two as shown on the plat of the town of Tokio, a copy of which he had with him, while Steuart contended that he had only agreed to sell him a strip of land 30a by 100 feet, declared he would make a deed for no more, and refused to take the money. Appellant declared he had bought a city block 300 by 300 feet, and that he would take no less. He then went to his buggy, and returned shortly with his wife to Steuart’s store, and said to her in his presence: “Mr. Steuart has refused to take the balance of the money on this property. Is that right, Mr. Steuart?” And he replied, “Yes, that is right; I refuse.” Appellant started away, and Steuart said, “You will have to contest it in the courts.” To which he replied, “No, Mr. Steuart, I will go and take possession and let you contest it.” Mr. Steuart then agreed to take the money, and he and appellant went into the store.</p> <p>Appellant testified: “I had that map in my hand, but he got down two of his, and we looked them over, and then I took this piece of paper, and wrote out a receipt according to the map and handed it to him. Mr. Steuart said, ‘The receipt looks all right.’ And I said, ‘I would not ask you to sign it if it was not all right.’ He then signed the receipt, and gave it to me, and I handed 'him the $75 check. We drew the receipt according to the map. Mr. Steuart signed that receipt in my presence right behind the counter in his store. It bears the date that the money was paid.” The receipt describes block two as it is shown on the map or plat of Tokio, and is as follows:</p> <p>“Tokio, August 10, 1909.</p> <p>“Received $75 in full payment for block No. 2 between Railroad Avenue and Main Street, north and south, and Third Street and Fourth Street, east and west.</p> <p>“I. N. Steuart.”</p> <p>Steuart testified: “I gave no such receipt for the $75 as is copied as an exhibit to plaintiff’s deposition. I remember the substance of the receipt that I did sign and deliver to him at that time. It was: ‘Received of Harry Johnson ($75) seventy-five dollars in full payment of one plot of ground, one acre more or less.’ My brother, F. J. Steuart, came in while we were talking. I do not know whether he saw the receipt. This land lies near the town of Tokio. There was no town there then. It has not been incorporated. It has three store houses, a depot, law office and two residences.</p> <p>He stated also that he had a map or blue print of the town at the time, but that he did not have it before him when the last payment was made, and Mr. Johnson was to have the first land in block 2 as described on this map; he was to have a corner when it was surveyed. Fie did not contend for all of it until he made the last payment. “The reason why I did not at first receive the money was because plaintiff told me that he expected to get block 2. I told him that I would receipt him for the money paid. I understood that he was contending that he had bought block No. 2 before I receipted him for the money. I refused to accept the money at first.”</p> <p>Several witnesses testified that they heard the conversation between the parties relative to the agreement to sell before the first receipt was given, and that 300 by 100 feet was the size of the tract. Appellant attempted .to put a wire fence around the block shortly after paying the balance of the purchase money, and 50 feet on one corner was not inclosed by the wire. Upon this appellee Steuart later started the erection of a storehouse. Steuart and wife about two weeks after the execution of the last receipt tendered appellant a deed to a portion of the block 300 by 100 feet which he refused to accept, and then offered to return the $100 with interest, which was also declined. Both receipts, the first of which was admitted to have been given by Steuart, and both checks in payment, with the indorsements, were introduced in evidence, and he denied having signed only the last receipt, and they have been brought up and exhibited to this court.</p> <p>The chancellor found that Steuart sold appellant a lot 300 by 100 between the railroads, that it was a part of his homestead, that it was platted before thé last payment of purchase money, that the agreement was parol, not joined in by his wife and void, and appellant was not entitled to specific performance of it. But, since appellees had executed and offered to deliver to appellant a deed to this 300 by 100 feet tract, specific performance was decreed as to that, and each party adjudged to pay half the costs. From this judgment appellant brings this appeal.</p> <p>1. Having signed a writing which witnessed the sale of a city block at the intersection of two certain railroads, appellee will not be permitted to make claim to the contrary, nor to complain that he was mistaken as to its terms. 70 Ark. 512; 71 Ark. 185. A block in a city or town usually means a square, one side of which is 300 feet in length.</p> <p>2. The contract to convey a part of appellee’s homestead was not void as within the .act of March 17, 1887. He owned 187 acres in a body, out of which he could have selected 160 for a rural homestead, but he chose to plat and dedicate 20 acres thereof for a townsite, and -it was not necessary that his wife should have joined in the dedication. The effect of this dedication was to abandon this part of his land as a homestead. The husband can abandon a homestead, and the wife is bound by it. 68 Ark. 76; 58 Ark. 124; 37 Ark. 304; 43-111. 174; 14 Cal. 506; 10 la. 51; 45 Miss. 263, 276; 96 S. W. 650; 109 S. W. 966. A rural homestead may be charged into an urban homestead, but .thereupon 'that portion of the rural homestead which is not within the town, or which is not actually used for homsstead purposes, loses its homestead character, in Tex. 1079; 38 Tex. 421. If land is .urban in fact, it -is immaterial that it has not been platted into lots and blocks. 61 Minn. 170; 52 Am. St. 592; 5 Kan. 592.</p> <p>1. If the court should find that appellee agreed to sell to appellant a “city block” as described in the receipts and set out in the complaint, still appellant would not be entitled to enforce a specific performance of the contract, because the town In which the block is situated is omitted from the description in both receipts. 85 Ark. 3.</p> <p>2. The contract to convey the land was void under the act of March 18, 1887, because it was a part of appellee’s homestead, and his wife did not join therein. 64 Ark. 7; 124 Cal. 59; 52 Pac. 127; 57 Ark. 242; 76 la. 567; 60 Wis. 377; 62 Miss. 195; 12 Am. St. Rep. 681; 15 Id. 47; 9 la. 60; 20 Mioh. 369; 33 Kan. 53; 55 Minn. 244; 68 Ark. 79.</p>