According to the abstract, no ruling of the which she had executed to appellant on Occourt was elicited on that issue.

tober 26, 1918, and had delivered on the following day, to an 80-acre farm owned by her. The deed provided that appellee should remain in full and complete possession of the land during her life, and that she should receive as her own all rents and profits therefrom, and that she should have the exclusive control and management thereof. Appellee was past 70 years, and was childless. She had no blood relatives, except some neph

[4] Moreover, the appellee alleged that the sum of $6,000 was to be paid for the timber. Appellant Lavender does not deny that such was the consideration, but, on the contrary, he expressly admits that "he was induced to purchase said timber at and for the sum of $6,000." There was therefore no issue as to the amount of the consideration that Lavender was to pay for the timber. Even if Lavender had offered the testimony as above con-ews; but appellant and a Mrs. De Lille had tended by him, the court would not have erred in excluding the same and thus restricting the parties to the issue raised by the pleadings.

both lived with appellee before they were married, and each of them called appellee mother, and she called each of them daughter. In May, 1918, appellee executed and deThe appellant Lavender, while admitting livered to Mrs. De Lille a deed to another 80that he was to pay $6,000 for the timber, al-acre tract of land she owned, and appellant leged that this consideration was agreed upon on account of the false representations of the appellee to the effect that there was 1,000,000 feet of timber in the tract. But there was no testimony to warrant the court in submitting an issue of deceit and fraud to the jury. Under the undisputed evidence, the court would have been justified in instructing the jury to return a verdict in favor of the appellee on this issue.

There was no error in the rulings of the court on the issues between the appellee and appellant Lavender. There was evidence to sustain the verdict as to appellant Lavender. The judgment as to him is therefore correct, and it will be affirmed.

As to the appellant company, the judgment will be reversed and the cause, for the error indicated, will be remanded for a new trial.

DAMRON V. BOWLEN. (No. 30.) (Supreme Court of Arkansas. May 31, 1920.) Deeds 211(1)-Evidence held to sustain finding of aged grantor's incapacity.

In suit by an aged woman, formerly incompetent and under guardianship, to cancel her deed to an 80-acre farm, evidence held to sustain the finding of the trial court in favor of plaintiff that she did not possess capacity to execute the deed.

Appeal from White Chancery Court; John E. Martineau, Chancellor.

insists that there was no more consideration for that deed than there was for her own, and that the consideration in each case was love and affection, and she insists that the fact that no suit has been brought to cancel the De Lille deed should be strongly persuasive of the grantor's capacity to execute the two deeds. This litigation does not involve the De Lille deed; but it appears that Mrs. De Lille was an adopted daughter, and had lived in appellee's home for many years, while appellant was not an adopted daughter, and had lived in appellee's home only a few months altogether; in fact, for a period of about 15 years there was no communication between appellant and appellee. Appellee lived on the farm near Bald Knob, in White county, and appellant's home was at Bono, in Craighead county. Appellant came to appellee's home in response to a telegram, signed by appellee, asking her to do so, and appellee within a few days after appellant's arrival executed and delivered the deed here sought to be canceled.

It is not shown that any undue influence was exerted to obtain the deed, but the court found that appellee did not possess sufficient mental capacity to comprehend the effect of her action in executing the deed, and decreed its cancellation, and this appeal is from that decree.

Appellee testified that she was past 70, and that her health was feeble; that she was told that she had frequently called the name of appellant during a spell of illness she had had, but that she had no recollection of hav

L.ing done so, and that if she did this it was

Suit by Hattie M. Bowlen against Mollie Damron. From judgment for plaintiff, defendant appeals. Affirmed.

Brundidge & Neelly, of Searcy, and Gardner K. Oliphint, of Little Rock, for appellant. Culbert L. Pearce, of Bald Knob, for appeliee.

SMITH, J. This suit was instituted August 19, 1919, by appellee to cancel a deed

done in delirium because of the fever she had; and that she was sick when she executed the deed and did not realize or appreciate what she had done; and that, while she remembered something about the transaction, it was "kind of like a dream to her." Mrs. De Lille testified that appellant's husband went to town for a notary public, and that Mr. De Lille went with him; that the deed had been prepared before the notary came,

(222 S.W.)

and that the notary was there only a fewers based opinions upon observation so slight minutes; and that appellee at the time was as to carry but little weight. just getting over an attack of the influenza, from which she had been suffering.

J. S. Baker, a near neighbor who had known appellee intimately since 1880, testified that "her mind seemed kind of wavy," | and a number of other neighbors detailed various incidents upon which they based the opinion that appellee's mentality had failed, and that she was not capable of understand ing and transacting important business.

A tenant on the place named Sprouse, in response to the question whether appellee had sufficient mental capacity to execute the deed, expressed the opinion that, if she had mind enough to bring a suit to set her deed aside, she had mind enough to make the deed. Another tenant named Russell expressed the opinion that he had observed no change in appellee's mentality, and that she had the capacity to make the deed or other contract. He testified that no one could get along with appellee, and he had been unable to do so, and that she came into the field where he was plowing, and stated that he was trespassing and ordered him out of the field.

Other witnesses who had known appellee for varying lengths of time, and who had more or less association with her, expressed Action by Mrs. Lela H. Harrower against the opinion that she was sane. Some of these the Insurance Company of North America witnesses had had opportunity to see and and another. Judgment for defendants, and observe appellee quite frequently, while oth-plaintiff appeals. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

John B. Crownover, of Dardanelle, for ap- Insurance Co. v. Mowry, 96 U. S. 544, 24 L. Ed. 674. pellant.

through their agent agreed to do so. It is. Banks and banking 143(5)—Dishonor of also alleged that the property was destroyed by fire on October 8, 1918.

(222 S.W.)

R. J. Williams and Mann, Bussey & Mann, all of Forrest City, for appellant.

C. W. Norton, of Forrest City, for appellee.

Action by N. R. McFall & Co. against the for substantial damages, and that, having First National Bank of Forrest City. Judg- made such affirmative showing, it was enment for plaintiff, and defendant appeals. titled to an instruction to the effect that the Affirmed. presumption of substantial damages, resulting from the wrongful dishonor of a merchant's or trader's check, could be overcome by evidence showing to the contrary. Two instructions, Nos. 2 and 3, requested by ap pellant and refused by the court, were to that effect. It is urged that the court committed reversible error in refusing to give them. One reason for the rule allowing a merchant or trader temperate or reasonable damages for the wrongful dishonor of his checks on mere proof of his character of business is because it is almost impossible to prove special injury or damage. It is just as impossible to prove that no injury resulted as to prove it did. For that reason, if no other, the doctrine contended for by appellant is not sound. The wrongful dishonor of a merchant's or trader's check is a slander on his business. The foundation of his business is the credit which is injured per se by the dishonor of his paper. So this character of case is akin to and comes within the category of slander suits in which general damages are allowed as a matter of course without proof of special damages. The necessary and natural consequence of the dishonor of a merchant's or trader's check is to substantially damage him, and the conclusive presumption indulged by the law that he is damaged is based upon such necessary or natural result. Conclusive presumptions of law are irrebuttable by proof. The court did not therefore err in refusing to give appellant's requests Nos. 2 and 3.

HUMPHREYS, J. Appellee, a mercantile partnership composed of N. R. McFall and W. A. Scales, instituted suit against appellant, an incorporated bank, in the St. Francis circuit court, to recover damages on account of appellant's refusal to pay checks drawn by appellee on checking funds theretofore deposited by it in said bank. This is the second appeal in the case. The first appeal appeared here under the style of N. R. Mcrall et al. v. First National Bank of Forrest City, and is reported in 138 Ark. 370, 211 S. W: 919. The case was reversed on the first appeal and remanded for a new trial, because the trial court instructed the jury that it was incumbent upon appellee to prove actual damages to justify a recovery in excess of nominal damages. In reversing the case, this court laid down the rule that merchants' and traders' checks, wrongfully dishonored through mistake or otherwise by the bank upon which drawn, are entitled to recover substantial damages against the bank dishonoring them, without pleading or proof of special injury. In other words, the court announced the doctrine that the law presumed the wrongful dishonor of merchants' and traders' checks substantially damaged their credit, for which they could recover temperate or reasonable damages. This rule became the law of the case and served as the court's guide on the retrial of the cause.

The only difference between the testimony on the former and present appeals is that the present record reflects evidence adduced by appellant tending to show that the credit of appellee was not injured by the dishonor of the checks. Upon reversal and remand, the cause was submitted to a jury upon the pleadings, evidence, and instructions of the court, conforming to the rule announced in the former appeal, which resulted in a verdict and judgment for $500 against appellant in favor of appellee. From the judgment an appeal has been duly prosecuted to this

court.

[1, 2] It is insisted by appellant that the only effect of the rule announced in the former appeal was to place the burden upon appellant to show that appellee's credit was not injured, in order to exempt it from liability

[3] Notwithstanding the law presumes a depositor is substantially damaged by the wrongful dishonor of his check and that he is entitled to temperate damages without proof of special damage, yet it is permissible to make such proof in mitigation of damages. The fact that such proof is admissible in behalf of a merchant or trader whose check had been wrongfully dishonored would suggest the right on the part of the bank dishonoring the check to affirmatively show that no injury to such depositor's credit resulted, in mitigation of damages, but it could only be used in mitigation of damages, because, if the rule were otherwise, the conclusive presumption of substantial damages, indulged by the law, might be rendered nugatory.

No error appearing, the judgment is affirmed.

MCCULLOCH, C. J., dissents.

RUDOLPH v. KELLY. (No. 23.)

(Supreme Court of Arkansas. May 31, 1920.)

1. Sales 323-Testimony properly excluded as not germane to issue.

In action to recover a touring car, claimed by defendant to have been purchased by him with a deed to certain land, testimony for plaintiff as to the value of the land, and that at the time the witness traded it to defendant for defendant's automobile, which defendant had been trying to induce plaintiff to accept in

exchange for his car, defendant represented that he had the right to sell the car, etc., held properly excluded, as not germane to issue.

2. Pleading 36 (2)-Plaintiff cannot claim no sale to defendant, while claiming a sale effected by false representations.

In action to recover automobile, claimed by defendant to have been bought by him with a deed, plaintiff will not be heard to say in one breath that he did not sell the car to defendant, and in the next breath that, if he did sell it, defendant made false representations.

appellee that he was going away, and that appellee could make the deed and deliver it to appellant's agent, Thompson, who was authorized to receive it. The appellee delivered the deed to appellant's agent, who delivered to appellee the Ford car.

The facts, which the testimony on behalf of the appellant tended to show, are substantially as follows: When appellee proposed to trade appellant 40 acres of land for appellant's Ford car, appellant told appellee that he might make the trade if the land was all right. Appellee said it was a 40-acre tract of good land; that the timber had never been cut over, and he thought it was worth $400. Appellant let appellee have the car in controversy, to deliver appellee's Chevrolet, which appellee had traded for the land. Appellee never brought the car back. Appellant was to get a note secured by the land and a Ford car. Appellant had never seen the land at the time he agreed to take same in trade for the car. The appellant did not trade the car for the land. Appellee did not make the deed to the appellant before he (ap

Appeal from Circuit Court, Clark County; pellee) took possession of the car. Appellee George R. Haynie, Judge.

Action by Irvin H. Rudolph against J. E. Kelly. From a judgment for defendant, plaintiff appeals. Affirmed.

McMillan & McMillan, of Arkadelphia, for appellant.

W. H. Mizell, of Arkadelphia, and D. D. Glover, of Malvern, for appellee.

WOOD, J. This action was brought by the appellant against the appellee to recover the possession of a Ford touring car. The appellant alleged that he was the owner and entitled to the immediate possession of the car; that it was worth $500; that the appellee upon demand of appellant refused to surrender the same. The appellee denied the allegations of the complaint, and alleged that he had been damaged by the wrongful bring ing of the suit in the sum of $500, for which he asked judgment.

had the car in his possession, which appellant had loaned him, and when appellant got back from Hot Springs he found that appellee had left the deed with appellant's agent, Thompson. Appellant denied that he had instructed his agent, Thompson, to deliver the car and accept the deed in his absence.

Appellant testified that the car in controversy was taken in on trade for a Dodge car from one Brewer; the understanding being that he, appellant, or Brewer, had the right to dispose of it for $500, the amount of the balance Brewer owed on the Dodge car. The effect of appellant's testimony was that he did not own the car in controversy at the time he loaned the same to the appellee; that it was only left with him by Brewer to secure appellant in the sum of $500, for the balance of the purchase money due him from Brewer for a Dodge car, which either he or Brewer had the right to sell; that appellant loaned the car in controversy to the appellee; that appellant was contemplating a trade of the car with the appellee for 40 acres of land, provided the appellee obtained the land, but that the trade between the appellant and appellee had not been consummated at the time appellant left for Hot Springs. The trade between appellant and appellee, according to appellant's version, was that he was to sell appellee the car for $500 and take the appellee's note for same secured by the land and the car.

The facts, which the testimony on behalf of the appellee tended to show, are substantially as follows: Appellant was a dealer in automobiles. The appellee owned a Chevrolet car, and proposed to the appellant to trade him the same for a Ford. This the appellant refused. The appellee gave his Chevrolet and the sum of $50 to Charlie Allen for a 40-acre tract of land near Arkadelphia, Ark. While the appellee was negotiating for this land, the appellant told him that, if he could make the deal with Allen for the land, appellant would give the appellee the Ford The appellant offered to prove by Charlie car for the land. After the appellee had Adams the value of the land which appelbought the land, he and his wife made the lant sold to the appellee. The court refused deed to the appellant. While appellee was to admit this testimony, to which ruling the negotiating for the land, the appellant told appellant excepted. The appellant further