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decision of the question as to the meaning, his testimony, were sufficient to pay only of the phrase "near relative.” He testified about 35 per cent. of the claims of the credithat he did, and there is no contradiction of tors. The assignee then brought this suit, this testimony, and as it cannot be said that and alleged that E. C. Cain, a stockholder the question is so free from doubt as to indi- į and officer of the corporation, bad misapprocate a mistake so gross as to indicate bad priated the assets of the corporation by pay. faith, his decision, which was that of the ing to appellee, R. T. Hunt, funds known to management, must be accepted as final and belong to the corporation in satisfaction of binding on the contestants.

a personal obligation due Hunt by Cain. The judgment must, therefore, be reversed, The testimony offered in the case in supand as the case has been fully developed it port of these allegations was to the followwill be dismissed.

ing effect: Hunt had been engaged in the
hardware business at Miami, and sold a half
interest in the business to Cain, after which
the business was incorporated as the Hunt-

Cain Hardware Company. Later Hunt sold
HERRING v. HUNT. (No. 60.)

to Cain his remaining half interest in the (Supreme Court of Arkansas. June 15, 1925. corporation, and in payment of the balance Rehearing Denied July 13, 1925.) due on the sale of this stock Cain remitted

to Hunt three checks payable to Hunt's or1. Corporations w430—One receiving check der as follows: One dated June 15, 1921, for on corporate funds for payment of officer's in. $350; one dated August 5, 1921, for $864.61 ; dividual debt with knowledge thereof liable to corporation therefor.

and one dated August 27, 1921, for $204.

These checks were drawn on a bank in Mi. One receiving a check from an officer of a

"Hunt-Cain corporation, drawn against corporate bank ac- ami, Okl., and were signed: count in payment of individual debt of officer Hardware, by Edgar Cain, Secy. & Treas.” drawing check, with knowledge that funds of These checks were'indorsed by Hunt and decorporation are being thus misappropriated, be-posited by him in a bank in Ft. Smith, where comes liable to corporation for money thus re- | Hunt was then living and in business, and ceived.

were paid by the bank upon which they were 2. Corporations Cow 430 - One receiving check drawn, and the cashier of that bank testi

on corporate funds on officer's debt must have fied that when paid the checks were charged
knowledge that money received was corpora- to the hardware company's account.
tion property before he is liable.

The name of this corporation appears to Though acceptance of a check against cor- have been signed both as the Hunt-Cain porate funds, in payment of individual debt of Hardware Company and as Hunt-Cain Hardofficer, raises presumption of knowledge that ware, but the identity of the corporation unfunds are being misappropriated, it is a rebut- der both names does not appear to be questable presumption, and burden to show that

tioned. payee had knowledge of misappropriation is on party asserting such facts, and before one ac

Hunt testified that after having been in cepting check would be liable he must have business in Van Buren 35 years he removed knowledge that money received was property of to Miami in 1918 and engaged there in the corporation.

hardware business, in which he invested

$15,000. Soon thereafter he sold Cain a half Appeal from Circuit Court, Sebastian interest in the business for $7,500, of which County; Jno. E. Tatum, Judge.

$2,000 was paid in cash and the balance of Action by L. B. Herring against R. T. $5,500 was divided into monthly payments, Hunt. Judgment for defendant, and plain the number of which was not stated. The tiff appeals. Affirmed.

business was then incorporated with a capiIrving C. Neal, of Ft. Smith, for appel- tal stock of $14,000, but the assets of the lant.

company amounted at that time to about Chew & Ford, of Ft. Smith, for appellee.

$19,000, of which $5,000 was invested in fix-
tures, $3,000 in accounts, and the balance in

a stock of hardware. At this time Hunt
SMITH, J. The Hunt-Cain Hardware and Cain regarded themselves as equal own-
Company, a corporation which had been en- ers of the business, although the wife of
gaged in business at Miami, Okl., made an Cain had stock to qualify her as an incorpo-
assignment on February 20, 1922, under the rator.
laws of that state, for the benefit of its cred- Two months after the sale of this half in-
itors, and L. B. Herring was named as as- terest Hunt sold Cain the remaining half
signee. After his appointment and qualific for $7,500, of which $5,000 was paid in cash,
cation, the assignee wound up the affairs of and the balance was evidenced by notes. He
the corporation and collected its assets, admitted that he received and cashed the
which were by him distributed to the corpo- checks in question, but testified that he paid
ration's creditors, and which, according to no attention to them except the amounts

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(273 S.W.) thereof, and did not know where the money , first instruction, from which we have quoted, was coming from with which they were paid. that one receiving the check of a corporaHunt further testified that he supposed that tion in payment of the personal opligation of both Cain and the corporation were solvent, the officer of the corporation drawing it is and he did not realize or know that Cain put upon notice that he may be held liable was using corporate funds with which to pay for receiving misappropriated funds. But the individual debt of Cain due him. In oth- we think the court was not in error in modier words, if Hunt's testimony is to be cred-fying instruction numbered 3 by requiring ited, and its truth was, of course, a question the jury to find that Hunt knew the funds for the jury, he assumed that Cain was in of the corporation were being misapproprieffect and in fact the sole owner of the busi- ated. ness of the Hunt-Cain Hardware Company, One who is the beneficiary of such misapand further assumed that both Cain and the propriation may be called upon to restore hardware company were solvent, and cashed the funds so received. And if it be said that the checks without having his attention the acceptance of a check, drawn as were the. called to the manner in which they had been checks in question, raises the presumption drawn.

that the party accepting it knows that the The court charged the jury, at the request funds are being misappropriated, this is a reof the plaintiff, that a person who accepts a buttable presumption, and the burden upon check which, on its face, purports to be the whole case to show that the payee in the drawn on the funds of a corporation by an check has knowledge of the misappropriation officer thereof in payment of the personal is upon the party asserting that fact. It debt of the officer drawing the check must was not error, therefore, for the court to ascertain whether such officer had authority modify the instruction numbered 3 by addto so divert and use the corporate funds, and ing the clause that Hunt must have known that the payee of such a check receives and that the money which he received on the cashes it at his peril, and is subject to be checks was the property of the corporation required to account for the proceeds thereof before he would be bound thereby, and this if the check was drawn without authority, is true although the form of the checks and the funds of the corporation were thus prima facie imputed such knowledge. misappropriated.

Having concluded that the testimony is leThe plaintiff requested an instruction num- gally sufficient to support the finding of the bered 3 reading as follows:

jury that Hunt did not know that the funds

of the Hunt-Cain Hardware Company were "You are instructed that an officer of a corporation has no right to use the funds of the being misappropriated, it follows that the corporation to pay his personal debts, and any judgment should be affirmed, and it is so or

dered. one accepting the funds of said corporation from an officer in payment of the officer's personal debt does so at his peril."

The court gave this instruction after add-BROWN et al. v. REYNOLDS. (No. 86.) ing, at the end thereof, a qualifying clause (Supreme Court of Arkansas. June 29, 1925.) reading as follows: “But he must have known that the money was the property of

1. Reformation of instruments 45(5)-Deed

not reformed, unless testimony clear and the corporation before he would be bound

convincing that mutual mistake made. thereby." An exception was saved to this

A deed will not be reformed, unless it is modification, and the correctness thereof pre-shown by clear and convincing testimony that sents what we regard as the controlling a mutual mistake was made in description emquestion in the case, although other ques- ployed in deed. tions are argued.

2. Reformation of instruments Om 45(5)-Mu. [1] It is the law that if one receives from

tual mistake in description in deed warrant. an officer of a corporation a check drawn

ing reformation held not shown by clear and against the corporate bank account, in pay

convincing testimony. ment of the individual debt of the officer

Grantors held not to have shown by clear drawing the check, with knowledge that the and convincing testimony required that misfunds of the corporation are being thus mis- take in description employed in deed, covering appropriated, he becomes liable to the corpo- more land than they owned, was mutual, warration for the money thus received. And the ranting reformation. court so instructed the jury. Section 612, chapter on Corporations, in 7 R. C. L. page

Appeal from Ouachita Chancery Court; 610; Rochester, etc., Turnpike Road v. Pa- Geo. M. LeCroy, Chancellor. viour, 164 N. Y. 281, 58 N. E, 114, 52 L. R. Action by T. H. Reynolds against W. W. A. 790, and cases cited in the annotator's Brown and others, wherein defendants filed note.

a cross-complaint and cause was transferred [2] The court also charged the jury in the I to equity. From a decree dismissing de

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fendants' cross-complaint and entering judg- The property which appellants intended ment for plaintiff, defendants appeal. Af- to convey had been owned by two brothers, firmed.

who are referred to as the Brown brothers, Gaughan & Sifford, and Streett & Streett, and the grantors were their heirs. Of these all of Camden, for appellants.

W. W. Brown resided in Camden, where the · Haynie, Parks & Westfall, of Camden, for property was situated. Six of the other heirs appellee.

were nonresidents, but had executed to G. S.

Rumph a power of attorney to execute deeds SMITH, J. On the 28th day of March, conveying their interests in the land. The 1923, the appellants executed a deed to ap- deed was sent around to the other heirs unpellee conveying lot 510 in the Ashley plat til all of them had executed it. in the city of Camden, Ark., as numbered and Appellee testified: That he bought lot 510 shown on the official map of said city, made to divide into a subdivision. That he supby J. V. Pedron in the year 1891. This sur- posed there were about 12 acres in it, and •vey included what is a part of lots 1 and 2 that he paid $12,500 cash for the property. of Mitchell's subdivision of the city of Cam- That he had never seen any of the corners, den according to another survey. Both lots and it was only by the streets that he knew had been owned by E. C. Holmes, but he had where the lines were, and before he received sold lot 2 to Mrs. A. W. Green. Appellants his deed he had a survey of the property never had any title to these two lots, and made, the survey being made to see how the were never in possession of them. These lots property could be subdivided into lots. Apwere part of the property which bounded pellee had used a portion of this property as appellant's property on the east, and were in a pasture. His son and another man had the possession of Holmes and Mrs. Green stretched a couple of barbed wires across it when appellants executed the deed to ap to keep some cows in. The price on the proppellee.

erty was given appellee by the resident heir, Lot 510, as shown on the Pedron map, con- but no one showed him the lines. Had seen tained 12.7 acres, and the portions of lots 1 the plat of the land attached to the abstract and 2 included in lot 510, according to the of the property, and knew what it showed, Pedron map, contained 1.6 acres, thus reduc- and took the dimensions as shown by this ing the acreage of the property which was plat and compared them with the official city actually owned and conveyed by appellants map of Camden, and found that the dimento appellee to 11.1 acres.

sions corresponded. The map, which is reAppellee instituted suit for damages for a ferred to as the official map of the city of breach of the warranty contained in the Camden, was prepared by Pedron in 1891, deed; and appellants filed an answer in under an ordinance of the council employwhich the execution of the deed was admit- ing Pedron to make a map of the city, and ted, but it was alleged that that part of the is the map to which the description in the description in the deed reading, “as number- deed referred. After appellee had negotiated and shown on the official map of said ed for the purchase of the land, he employed city, made by J. V. Pedron in the year 1891," an engineer to subdivide it into lots. This was inserted by the mistake of the scrivener engineer testified that he commenced work who prepared the deed, and that in prepar- on March 29, 1923, which was one day after ing said map, said Pedron, by mistake, in the date of the deed but several days before cluded within lot 510 that part of the prop- the acknowledgment of all the heirs had erty known as lots 1 and 2 of Mitchell's sub- í been obtained, and of course before the dedivision of the town of Camden, and that livery of the deed. they had no knowledge of the mistake made Mr. Brown, the resident heir, testified that by Pedron; that a fence marked the true line he knew nothing about the plat attached to between the property owned by appellants, the abstract, and did not know where the which they intended to convey, and lots 1 property lines were, nor the area of the and 2 of the Mitchell subdivision, and that property. He merely fixed the price for appellee knew this fence was the line and which the heirs would sell, and intended that appellants did not own and did not only to convey the land owned by his father intend to convey any property east of this and his uncle. fence, but appellee knew that appellants in- Mr. Rumph, who executed the deed under tended to convey only the land extending to the power of attorney from six of the heirs, that dividing fence. There was a prayer testified that he did not know anything about that the cause be transferred to equity, and the legal description of the property, but the deed from appellants to appellee be re- there were fences from which appellee should formed to express the real intention of the have known what property was intended to parties. The cause was transferred, and up- be conveyed; but, on his cross-examination, on a trial the chancellor found in favor of he admitted that he could not say that apappellee, dismissed appellants' cross-com- pellee knew he was buying any less land plaint, and entered judgment for appellee than the plat attached to the abstract showfor the proportionate value of the land to ed. About a year before the sale, witness which appellants had no title.

gave appellee permission to use the lot as a (273 S.W.) pasture, and witness supposed appellee knew | ed Rumph the fence which Holmes claimed from the fences what lands were owned by was on the line, and Rumph stated that he the estate of the Brown brothers.

could not understand why Holmes would After the price had been agreed upon, the fence up something that did not belong to abstract was delivered to appellants' attor- him, and that he could prove the land had ney to prepare the deed. The attorney was not been fenced for 7 years. not asked to pass upon the title, and made Rumph admitted that he went with apno examination of the abstract. He obsery- pellee and appellee's son to look at the land ed that the plat on the abstract described after the sale, but he did not understand the land as lot 510, and gave the dimensions they were talking about the fence on the east thereof, and the attorney verified these di- side, but supposed they were talking about mensions by comparing them with the Ped the fence on the west side. ron map, and, when he had done so describ- The testimony also shows that the Brown ed the land as being lot 510 according to the estate paid taxes for a number of years on Pedron survey.

lot 510 which was assessed for taxes accordMr. Holmes testified that he had owned ing to the Pedron survey. lots 1 and 2 of Mitchell's subdivision, but he Holmes brought suit to quiet his title to had sold lot 2 to Mrs. Green. These lots the portion of his land conveyed by appeljoined the Brown property on the east, and lants to appellee, and prevailed in that litiwere separated from it by a fence, which had gation, and the court decreed the relief praybeen in existence for 26 years.

ed. Thereafter appellee brought this suit. Some years before appellee bought the [1, 2] The parties to this litigation do not Brown lot, he bought the pine timber on it, disagree about the law of the case. It is, of and witness Holmes notified the timber cut-course, settled that the deed from appellants ters to stop when they got to the line, and will not be reformed unless it is shown by they did so. There were merchantable trees testimony that is clear and convincing that on his land at that time which appellee did a mutual mistake was made in the descripnot attempt to cut, and the timber thereon tion employed in the deed. It is certain that was not cut up to the east line of the Brown the Brown heirs did not intend to convey property. Witness would not say, however,

any land which they did not own, and it is that appellee knew of the directions he had reasonably certain that none of them knew given the timber cutters, but he did tes that a description had been employed in the tify that appellee knew that witness was in deed which covered more land than they possession of the land up to the fence.

owned. But this is not sufficient to obtain In rebuttal of appellants' testimony, a son of appellee testified that he represented his the relief here prayed. There is no intimafather in the negotiations for the purchase tion that any fraud was practiced in procurof the land. He admitted seeing the various ing the deed. It is only contended that apfences, but did not regard them as anything pellee knew the land claimed by appellants, more than inclosures of pastures—that sev- and that appellants did not intend to convey eral people were using portions thereof as any land they did not own, and that appel. pastures, the lands being devoted to that lee knew there was no intention to convey use. Before buying the land for his father, any part of the land owned by Holmes and he examined the plat on the abstract, and Mrs. Green. compared it with the official map, and sup

But appellee and his son both testified posed he was buying for his father the land unequivocally that they were governed by the which the deed in fact described. He had plat of the land attached to the abstract of charge of the cutting of the timber, and they title; that they took the dimensions from the had cut all the timber on the land as he sup plat and compared them with the official posed except two trees, one of which was in map before offering to buy the land and a ravine, and was not cut on that account, that they had for a month planned with the and the other was full of nails which had engineer how best to subdivide the property, heen driven in the tree to attach fences to it. and that they supposed they were getting Immediately after getting the deed, witness the land shown on the plat attached to the began clearing the land, when his crew of abstract, and which was described in the laborers was stopped by Holmes.

Witness deed. had observed no fences which indicated to

It is clear that a mistake was made, but, him that there was any adverse possession when we remember that reformation will not of anv of the land which he proposed to buy. be granted unless the mistake was mutual He thought he was buying for his father and that fact established by testimony that the land which the deed described. This wit is clear and convincing, we are unable to ness testified that after Holmes claimed a say that the testimony measures up to this part of the land witness and his father went requirement, and the decree of the court bewith Rumph to the land, and witness show. low denying that relief will be affirmed.

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in community was good, cross-examination as WEAKLEY v. STATE. (No. 34.) to complaints that accused conducted dancing

and drinking parties and crap games for boys (Supreme Court of Arkansas. June 8, 1925. at his house held proper to test credibility, Rehearing Denied July 13, 1925.)

7. Homicide Om 216 - Proper foundation must 1. Homicide Om 308(3) — Charge on homicide, be laid for dying declaration. lower degree than murder in second degree,

A proper foundation must be laid for adnot justified under evidence.

mission of an alleged dying declaration. In prosecution for murder, where evidence tended to show that accused killed deceased Appeal from Circuit Court, Arkansas Coun. while in state of intoxication and without prov- ty; George W. Clark, Judge. ocation, instruction on homicide of any lower degree than murder in second degree held not

Ike Weakley was convicted of murder in warranted under evidence.

the second degree, and he appeals. Affirmed. 2. Homicide On 294 (2)-Charge as to whether

Botts & O'Daniel, of De Witt, for appelkilling was with malice or result of insanity lant. produced by intoxication approved.

H. W. Appelgate, Atty. Gen., and Jno. L. In prosecution for murder, charge as to Carter and Darden Moose, Asst. Attys. Gen., whether killing was done with malice or was for the State. result of mania a potu-insanity produced by intoxication-held proper.

WOOD, J. The appellant was indicted

by the grand jury of Arkansas county for 3. Homicide ww28—Killing, resulting from vol. the crime of murder in the second degree, in

untary intoxication without provocation and
by deadly weapon, would be murder in second the killing of one Den Garrison.
degree.

Witness Slim Huddleston for the state tesKilling caused by voluntary intoxication tified substantially as follows: On the night without provocation, and by use of a deadly of the shooting Den Garrison and others weapon, would be murder in second degree, un

were at the appellant's house. They had less accused was laboring under diseased con- met there for a dance. After the dance dition of mind or fixed insanity, caused by a broke up some of them went upstairs and encontinued intoxication, so that he was incapa- gaged in a crap game. Garrison borrowed ble of knowing nature of act or that it was

some money from the defendant that night. wrong.

The game broke up about 4 o'clock in the 4. Homicide ww294(2)—Refusal of instruction morning, and the crowd went downstairs.

to acquit accused, if laboring under defect of The defendant came downstairs and through reason from disease of mind, proper.

the room where Garrison and others were, Refusal of instruction that, if at time of but did not at that time say anything. He alleged shooting accused was laboring under went into the kitchen and came back with a defect of reason from disease of mind, so as gun and cursed and said, “Now, what do you not to know nature of act, or that it was wrong, want me to do?" He threw the gun on his The must be acquitted, held proper, in absence of wife, who ran and picked up the baby and evidence that accused was aflicted with delirium said, “Daddy, don't shoot me; I have got the tremens or any other form of mental disease produced by intoxication, and that killing was baby." Albert Dallas and witness were the result of such disease rather than mere tem- only men in the room at that time. Witness porary loss of reason.

left the room and went about a hundred

yards from the house, and about that time a 5. Witnesses On 274 (2)-Cross-examination as shot was fired. Witness went back to the

to accused's general reputation for "peace house and found Den Garrison was shot. and quietude" proper; "public peace."

The defendant told them all to clear out, and Where justice of peace testified to general some

one took the gun away from him. reputation of accused for peace and quietude in Garrison was lying on the floor with a wound community, cross-examination as to complaints about an inch or two across on the inside of about dances and drinking parties and crap games at his house held not error; "peace and his leg. Garrison asked the defendant why quietude” signifying public quiet, order, and he shot him, and the defendant smiled a litsecurity, public tranquility and obedience to tle bit and told Garrison that he had insultlaw, and that public order and security which ed his wife, but when his wife came in she is commanded by the laws of a particular soy said that Garrison had not insulted her. ereign, lord or superior; “public peace” being Garrison and defendant were friendly. a condition of order that conforms to the re- Witness Albert Dallas testified that he was quirements of the law.

at the dance at defendant's home when the [Ed. Note.-For other definitions, see Words defendant came downstairs and got his gun and Phrases, Public Peace.]

and told the crowd to leave. Witness left 6. Witnesses C330(1)-Cross-examination as and went down the road about a quarter of a

to reputation of accused in conducting dances mile when he heard a gun fire. Witness did and drinking parties proper to test credibility. not hear the defendant say anything to Gar

Where justice of peace testified that gener- rison that night. They had no differences or al reputation of accused for peace and quietude words over money. Witness did not see or

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