Company, became a joint tort-feasor with B. J. Malone and C. A. Beggs on account of their acts, respectively, as general superintendent and mine foreman, in ordering their employés to mine coal and pull pillars in appellants' mine, was sufficiently traversed. It is true A. M. Malone in the petition attempts to controvert joint liability by alleging that the wrongful acts charged "were not done or suffered to be done by either the said Beggs, B. J. Malone, or Minnie Malone, nor were they done with their knowledge or under their directions, and that they are in no way responsible for the alleged damages"; in other words, it is charged in the petition for transfer that A. M. Malone himself directed the employés, including Beggs and B. J. Malone. It is not denied in the petition to transfer that B. J. Malone was superintendent and C. A. Beggs mine foreman of the New Coronado Coal Company, composed of A. M. Malone and C. M. McKoin. Without such denial, the traverse was insufficient because A. M. Malone, individually and as a partner, would be liable jointly with either or both for acts done by them within the scope, or apparent scope, of their authority. In order to effect the transfer of the cause, the petition of removal should have precluded every theory of joint liability of the resident and

nonresident defendants. There was no error in overruling the petition to transfer.

saying they were standing as late as July 7, 1917.

[4, 5] It is impossible to read the evidence without concluding that either appellants or appellee pulled the pillars in question. The evidence just detailed was substantial testimony from which the jury were warranted in concluding that appellants pulled the pillars which caused the squeeze that cut appellee off from his coal, and was sufficient in this particular to support the verdict.

(2) Because there is no evidence to show a wrongful conversion of the coal taken or a wrongful pulling of the pillars. The testimony offered by appellee with reference to the conversion of 1,497 tons of coal tended to show that it was converted after several futile attempts to get appellee to surrender his right thereto under lease from the owners of “Central No. 5 property," and that appellants continued the trespass until restrained by court order; and that offered with reference to wantonly pulling the pillars, that they were pulled with knowledge as to the location of the line between the two properties, and that the effect of pulling them would be to destroy appellee's entry, cover up his track of 800 or 900 feet, over which he was hauling coal from the east end of his mine, and to permanently cut him off from it and the pillar coal in the mine. This evidence was sufficient upon which to base an inference

(1) Because there is no evidence to show appellants pulled the pillars which produced the squeeze that obstructed appellee's passage-way to his coal in “Central No. 5 property." Appellee testified that in April, 1918, he laid a track from the "Mottu property" on the west in an easterly direction through the old workings in "Central No. 5 property" to a solid block of coal on the east side thereof for the purpose of mining it; that the New Coronado Coal Company was at the time working in the "Coronado property" immediately south of No. 5 aforesaid; that the pillars were standing when he built his track; that he did not pull them; that they were pulled, which caused the roof of "No. 5" to cave in, cover his track, and obstruct his passageway to the solid body of coal on the east. Marvin Repass testified that he helped appellee lay the track; that it was 800 or 900 feet long; that the squeeze, which covered it up and shut appellee out from the solid body of coal, came after the track had been laid, and the caving of the roof came from the direction where the New Coronado Coal & Mining Company, or Malones, were mining; that none of the pillars were pulled by appellee or his employé. The two mine inspectors, Boyd and Shaw, testified that the pillars along the line between the two properties were standing in the spring of 1917, Boyd

ones, and therefore enough legal, substantial evidence to support the verdict in this regard.

[6] It is next insisted that the court erred

in permitting the complaint and other proceedings to be read to the jury in a suit filed November 17, 1917, by the Central Coal & Coke Company against C. A. Beggs and others to prevent them from taking coal off of the tract of land in question. This evidence was offered and admitted by the court for the sole purpose of showing that C. A. Beggs, foreman of the New Coronado Coal & Mining Company, knew the location of the dividing line between "Central No. 5 property" and the "Coronado property" at the time the pillars in said No. 5 were pulled. C. A. Beggs testified to the nature of the injunction suit and disposition made of it, thereby showing a knowledge of the contents of the complaint. We think the complaint and proceeding admissible for the purpose offered.

[7-9] It is next insisted that the court erred in giving appellee's instruction No. 1: (1) Because the jury was directed to find against the New Coronado Coal Company for 1,497 tons of coal. This was the coal A. M. Malone and C. A. Beggs admitted taking from "Central No. 5 property" for the partnership and for which they offered to pay a reasonable royalty. The contention is made that the instruction is in conflict with the rule of law that a partnership cannot be sued as an entity and judgment rendered against

it as such. The suit was not against the partnership as a legal entity, nor was judgment rendered against it as such. The suit was against the New Coronado Coal Company, a partnership composed of A. M. Malone and C. M. McKoin. Judgment was rendered against it as an association of persons. There being no personal service on C. M. McKoin, the other partner, the effect of the suit and judgment was to bind A. M. Malone personally and as a partner, as well as the partnership fund impounded by attachment and garnishment. We are unable to see how any prejudice resulted to A. M. Malone, the only partner served, by the direction given to the jury of which complaint is made.

(2) Because the instruction assumed without justification that there was testimony from which the jury could find that C. A. Beggs directed the employés of the partnership and of A. M. Malone to remove the pillars from appellee's mine. We do not think the instruction assumed that there were separate employés of Malone and the partnership, and that C. A. Beggs directed all of them to do the wrongful act. The instruction in effect told the jury that A. M. Malone was liable individually and as a partner if the foreman wrongfully directed the employés, meaning one set of employés, to pull the pillars which caused the roof in said mine No. 5 to fall. If there was any doubt as to whether the court meant one or two sets of employés, appellants should have made a specific objection challenging the instruction on account of ambiguity.

owed the Central Company on a past transaction, so it would have been improper to deduct this amount from the damages assessed against appellants for willful conversion.

[10] It is also insisted that the court erred in giving appellee's instruction No. 2, by charging therein that the measure of damages was the profit that appellee would have netted on the unrecoverable coal lost by the wrongful removal of the pillars. The contention is made that the correct rule for the measure of damages was the value of the leasehold estate, if destroyed by a wanton act of appellants, and not the profit which appellee might have made. It seems allowable as a general rule to award profits as damages resulting from tortious acts, if ascertainable with reasonable certainty. 8 R. C. L. 508; 17 C. J. p. 785. In the instant case the proof showed that appellee lost 27,800 tons of coal, 1,389 tons more than he claimed, on account of the squeeze, which the jury found was occasioned by appellants' wanton act of pulling the pillars in "Central No. 5 property," which was contracted to be sold at $2.05 per ton on board cars, with expense of $1.70 per ton for mining and placing same on top at pit mouth; that the entire amount, with reasonable effort, could have been mined before the expiration of appellee's lease. Appellee's net profit would have been 35 cents on each ton claimed, or a total of $9,244.55, if placing the coal on top at pit mouth meant on board cars at pit, and there is nothing to show to the contrary. The jury awarded a much less amount as damages. The damages allowed were reasonably well established by the evidence.

(4) Because there was no evidence to warrant the submission of the issues as to whether appellants wrongfully removed the pillars in question. We ruled otherwise in the discussion of the question whether there was sufficient legal evidence to support the verdict.

(5) Because the instruction permitted a recovery for coal wrongfully converted at its reasonable value at the mouth of the shaft without deducting 25 cents per ton provided for in his contract of sale thereof to the Central Coal & Coke Company. The deduction provided for was a means adopted by appellee to pay an indebtedness of $1,139.03 he

Company, as he worked for the company as foreman for a long time and during the spring of 1917. Lake was not far away. No effort was made to get him or his evidence before the trial. The only excuse offered is that appellants had no idea what Lake would testify to until after the trial. Beggs' former connection with the company ought to have suggested that Lake, the former manager, could testify favorably for them. Sufficient diligence was not shown before the trial, and it cannot be said the court abused its discretion in refusing the motion for a new trial on account of newly discovered evidence.

No error appearing, the judgment is affirmed.

G. H. HAMMOND CO. v. JOSEPH MERCANTILE CO. (No. 404.)

(Supreme Court of Arkansas. May 17, 1920.

Rehearing Denied June 7, 1920.)

1. Principal and agent 119(2)-Presumption as to authority to sell goods in own name stated.

Where agent is engaged in an independent business, authority to sell in his own name goods consigned and delivered to him for sale is presumed from the nature of the business, but such presumption does not extend to agent who is engaged exclusively in selling his principal's goods.

2. Factors -Nature of the business of a "factor," stated; "commission merchant."

A factor or commission merchant is one engaged in an independent calling, and who buys and sells on commission any personal property left with or consigned to him for sale.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Commission Merchant; Factor.]

3. Principal and agent 103 (8)-Authority to sell "overs" as agent's own goods held not to apply to exchanged goods of principal.

That plaintiff packing company permitted its agent to sell "overs," the increase in weight of meat shipped to such agent resulting from salt put on it, or to sell his own goods on his individual account, did not justify or authorize his sale of meat of plaintiff for which he had exchanged "overs" without plaintiff's knowledge or consent.

When dry salt meat was shipped to Perkins in carload lots, there would be some meat left over by reason of the meat being salted and sacked out. This would occur because Per

kins only accounted to the plaintiff for the meat by weight. Perkins would put this left-over meat to one side in the house where he kept the plaintiff's meat, and was accustomed to sell it as his own. In May, 1918, he had a quantity of this dry salt meat, and asked the representatives of the defendant to purchase it from him. They told him that they could not use the dry salt extras, but that they could use some bacon extras if he had it. Perkins went back to the warehouse and exchanged the dry salt extras, which he claimed for bacon extras belonging to the plaintiff of equal value, and sold the bacon extras to the defendant as his own. The defendant paid Perkins for the bacon extras. On cross-examination the president of the defendant company testified that he knew that Perkins was a broker for the plaintiff company, and that he had no right to sell the plaintiff's goods in his own name and receive payment therefor. He further stated, however, that he thought the goods he bought belonged to Perkins, and that he had frequently bought goods from Perkins which were called "overs," and which he understood belonged to Perkins. The bacon in question in this case was packed in the original boxes when it was delivered to the defendant. After it was delivered to the defendant, Perkins' warehouse burned down. The plaintiff did not know that Perkins claimed what he called the "overs" from carload lots, and that he

Action by the G. H. Hammond Company against the Joseph Mercantile Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The plaintiff, G. H. Hammond Company, alleges in its complaint that it is a Michigan corporation duly authorized to do business in the state of Arkansas; that on the 6th day of May, 1918, the defendant, Joseph Mercantile Company, a domestic corporation, took into its possession and converted to its own use 1,165 pounds of bacon extras, be longing to the plaintiff, and of the value of $308.10. The defendant answered, denying the allegations of the complaint. The facts are substantially as follows:

Ray Perkins of Paragould, Ark., entered into a written contract with the plaintiff for the sale of its meat, to be consigned to Perkins and kept by him in a storehouse in Paragould, Ark., and sold by him for the plaintiff. Perkins agreed to keep the goods in a suitable building and not mingle them with other merchandise, and to sell the same without expense to the plaintiff, except the commission he was to receive.

plaintiff demanded payment of the bacon extras from the defendant, and payment was refused by the defendant. Hence this lawsuit.

There was a verdict and judgment for the

defendant, and the case is here on appeal. D. G. Beauchamp, of Paragould, for appellant.

Huddleston, Fuhr & Futrell, of Paragould, for appellee.