as testified to by appellee and his witnesses., De Loach v. Ozark Mutual Life Association, Witness further testified on cross-examina- supra; Lincoln Reserve Life Ins. Co. v. tion that when he was in the office of appel- Smith, 134 Ark. 245, 203 S. W. 698. lant he wrote policies; that that was about all there was to do. He had nothing to do with taking in the money. That was the duty of the secretary. Witness was not an officer of the company, but was an employee, and was acting in that capacity when he went up to settle with Roy Dillard. Witness did not answer the correspondence for the company. Witness was asked, "Do they take up settlements with you and confer with you about it?" He answered, "No, sir; they send me out with instructions, and I do it. Q. They took up the Roy Dillard matter with you? A. They took it up with him, and then sent me to look after it." Witness further testified that Roy Dillard had a claim against the appellant for $2,000. Witness was acting under the instructions of appellant when he made the settlement with Roy Dillard.

Appellant asked the court to instruct the jury to return a verdict in its favor, which prayer the court refused, and to which ruling the appellant duly excepted. The court, on its own motion gave to the jury two instructions, only one of which we deem it necessary to set out. No. 2 is as follows:

"You are instructed that, unless you find from a preponderance of the evidence that the plaintiff, J. F. Dillard, paid all assessments due by him or Mrs. Martha Baker, to whom the policies in this case were issued, of which either of them had notice, you will return your verdict for the defendant."

The jury returned a verdict in favor of the appellee in the sum of $220, and from a judgment entered in his favor for that sum is this appeal.

[1, 2] 1. In De Loach v. Ozark Mutual Life Association, 148 Ark. 414, 230 S. W. 268, 14 A. L. R. 921, we declared the law to be that a recovery cannot be had where the certificate of insurance was obtained by actual fraudthat is, where there was a willful purpose to deceive on the part of the insured or the ap plicant-but that premiums may be recovered in all other cases. Here the court, in an instruction given at the instance of the appellant, told the jury, in effect, that if the age of Mrs. Martha Baker, the assured, was over 60 years at the date of the application for membership in the association, they should find for the appellant, unless they further found from the evidence that her age was not carelessly, willfully, or knowingly misstated in the application. In other words, if Mrs. Baker was over 60 years of age at the time of her application, and it was willfully, negligently, or knowingly misstated that she was under 60 years of age, then the verdict should be in favor of the appellant. It will thus be seen that the instructions of the court were more favorable to the appellant than it was

The law on this subject was correctly announced in the instruction No. 1 given by the court on its own motion, in which the court told the jury that, if the application of Mrs. Baker was made in good faith and the first premium paid by her, and that all the other premiums were paid by the appellee, Dillard, the contract was a valid one, and Dillard would be authorized to recover, unless there was a fraud in the representation as to Mrs. | Baker's age. The issue as to whether or not the certificates were issued through fraud perpetrated upon the appellant by the appellee was submitted under instructions that certainly were not prejudicial to the appellant, and of which it therefore has no right to complain.

[3] 2. The court did not err in refusing to allow the appellant to read in evidence the statement of Mrs. Martha Baker, made to appellant's agent, reduced to writing, and purporting to be signed by Mrs. Baker. Mrs. Baker was not a party to the action, nor is she a party in interest, and most assuredly she was not representing the appellee as his agent in making the statement. Lincoln Reserve Life Ins. Co. v. Smith, supra. Therefore the purported statement was but the baldest hearsay, and under no rule of evidence was the same admissible. Mrs. Baker was living, and her testimony, if thought to be competent and relevant to the issue involved, could have been adduced in some of the methods authorized by the rules for the production of evidence.

[4] 3. The principal and only serious question in the case is whether or not there was any testimony to support the verdict on the issue of whether or not the appellee was entitled to recover on the alleged promise of the appellant, through its agent, Wagner, to cancel the certificates and return to the appellee the assessments or premiums that had been paid by him. This issue was submitted to the jury by the court's instruction No. 2, set out above. The phraseology of this instruction was not as clear as it should have been, but there was only a general objection to it, and, when taken in connection with instruction No. 8, given at the instance of the appellant, it could not have confused and misled the jury. By these instructions the jury was told, in substance, that unless Wagner was the agent of appellant, and had authority to make the statements which the appellee and his witnesses attributed to him, concerning the cancellation of the certificates and the return to the appellee of the assessments paid by him, and acted within the scope of such authority, then the appellant would not be bound by such statement, and the verdict should be in favor of the appellant.

These instructions, when taken together,

(273 S. W.)

MCCULLOCH, C. J. Appellant is a corporation engaged in manufacturing and selling sawmill machinery. Its principal place of business is Indianapolis, Ind., but it operates a branch plant at Memphis, Tenn., and it also carries on the business of repairing machinery. Appellees were, in the year 1920,

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copartners engaged in the business of manufacturing staves. Their place of business was in Poinsett county, Ark., near Marked Tree. They bought timber and had it cut into bolts and hauled, to the millyard, and there the bolts were sawed into staves and carried to market. The millyard was about 12 miles distant from Marked Tree, the nearest railroad shipping point.

Appellant instituted this action against appellees to recover, on account, for a lot of mill machinery sold and delivered, and appellees admitted liability for the amount of the account but presented a counterclaim for damages alleged to have been caused by negligent delay of appellant in repairing a saw which appellees had delivered to appellant for that purpose.

assured him that the saw would be ready
for reshipment in ten days or two weeks. .
Warren testified that he told, appellant's
manager about having a large quantity of
bolts on the yard which at that season of
the year would sour and spoil very quickly,
and that they had to depend upon getting the
saw back in order to convert the bolts into
staves before the bolts spoiled. The saw
was not returned to appellees in the time
specified, and Warren testified that he went
to Memphis to see appellant about it, and
that the manager claimed that the saw had
never been received. Claim was filed against
the railroad company, and a tracer was sent
out by that company, which developed the
fact that the saw had been promptly trans-
ported and delivered to appellant the day

The only issues of fact involved in the after it was shipped from Marked Tree. Aptrial of the case arose under the counter-pellant disputed the fact that it had ever claim on the question of liability for dam- received the saw, but finally shipped the ages and the amount thereof. The testimo- saw on January 2, 1921, to Vandale, Ark. ny adduced by appellees tended to show that Appellees are not suing for the value of the they lost 1471⁄2 cords of bolts on account of saw itself, but for damages on account of the delay, and the jury awarded damages in the delay in failing to reship it in time to the sum of $1,770, which was $12 per cord use in sawing the bolts at the millyard in on the quantity of bolts claimed to have been Poinsett county. It is inferable from the lost by appellees. position appellees have assumed in the case that they accepted delivery of the saw at Vandale instead of at Marked Tree, and they claim no damages on that account. Appellees testified that they made reasonable effort to get another saw to use in sawing up the bolts, but were unable to get one, and that the bolts became worm-eaten and sour and valueless.

[1] The principal contention is that the evidence is insufficient to sustain the verdict, either as to liability for special damages or as to the amount. In other words, the contention is that the evidence is not legally sufficient to sustain the verdict. In testing the legal sufficiency of the evidence, we must, under well-settled rules announced by this court, give it the greatest probative force to which it is reasonably susceptible in favor

of the verdict.

[2] The saw about which the controversy relates was one which was used by appellees at the mill for converting bolts into staves. The saw had to be re-steeled, and appellees shipped it by railroad to appellant at Memphis, Tenn., from the station at Marked Tree. The saw was incased in a box, with the address of appellant placed thereon, and also the initials of appellees were written on the box in large letters with a blue keel. The shipment was made at Marked Tree on September 3, 1920, and was billed to appellant at Memphis, and it reached Memphis the next day and was delivered by the railroad company to a local transfer company and by the latter to appellant. The shipment was made without any prearrangement between the parties concerning the repairs to be made on the saw; but on the next day after the shipment was made, Warren, one of the appellees, went to Memphis to see about having the work done, and a contract was there made between appellant and appellees for repairing the saw. Warren testified that he explained to appellant the conditions with which they were surrounded in regard to needing the saw as soon

The law prevailing in this state in regard to the recovery of special damages originated in the English case of Hadley v. Baxendale. 9 Exch. 341, and was adopted by this court in Hooks Smelting Co. v. Planters' Compress Co., 72 Ark. 275, 79 S. W. 1052. Since then there have been many decisions of this court on the question, all adhering to the rule there announced. It is only necessary to mention a few of the later cases. Crutcher v. C. O. & G. R. Co., 74 Ark, 358, 85 S. W. 770; C. R. I. & P. Ry. Co. v. Planters' Gin Co., 88 Ark. 77, 113 S. W. 352; Sager v. Jung & Sons Co., 143 Ark. 506, 220 S. W. 801; Miles v. Am. Ry. Express Co., 150 Ark. 114, 233 S. W. 930. The substance of the rule of law is that damages arising on account of special circumstances, or, in other words, special damages, are not recoverable on account of negligent breach of contract unless notice has been given at the time of the making of the contract, or before, of the circumstances from which the special damage might arise, but that such damages are recoverable if, at the time or before the making of the contract, the attention of the parties to the contract is called to the special circumstances. The testimony in this case is sufficient, we think, to bring the case

(273 S.W.)

cording to Warren's testimony, he told appellant's manager, at the time the contract was made for the repairing of the saw-there having been no previous arrangement between the parties for the work to be done about having a large quantity of bolts on the yard and that they would be entirely dependent on securing the saw within a short time in order to get the bolts sawed into staves before they spoiled. There was proof that notice was given of all the circumstances which caused the special damage. The evidence was also legally sufficient to establish the fact that the bolts were damaged to the extent that they became entirely valueless on account of appellant's failure to repair the saw, and that appellees were unable by reasonable effort to avert or mitigate the damage. There is a sharp conflict in this testimony, and there are apparent inconsistencies in the testimony of some of the witnesses; but we must treat these conflicts as having been settled by the verdict of the jury in favor of the contention of appellees. Appellant's manager testified as a witness, and denied that he had agreed to repair the saw within any particular time, and denied that he had been told of any special circumstances which would cause damage in the event of delay in making the repairs. It is not our province to pass upon the weight of the evidence, but we merely determine its legal sufficiency, and if found sufficient, we are not at liberty to disturb the verdict unless the trial court committed error submitting the issues to the jury.

be hauled for a reasonable price. There was
another witness who testified that bolts were
worth $15 to $20 per cord. We think that
the testimony was sufficient to warrant a
finding that the bolts were worth at least
$12 per cord, the value appraised by the
jury. Counsel for appellant insist that the
testimony had no application because it did:
not relate to bolts at the place where these
were located, but we are of the opinion that
the testimony was applicable as a guide to
the jury in determining the loss sustained
by appellees in having the bolts destroyed.
It is true that none of the witnesses testi-
a market value for
fied that there was
bolts at the place where those in controversy
This was a place 12 miles
were located.
distant from any railroad station, and,
of course, there was no one buying bolts
at that place; but the testimony showed
what the bolts were worth if they could
have been sawed into staves and then haul-
ed to the railroad shipping point. The evi-
dence was sufficient, therefore, to sustain
the verdict.

The only other assignment urged here is that the court failed to charge the jury sufficiently on the subject of the preponderance. of the evidence, but we are of the opinion that the court's charge on this subject was sufficient.

Affirmed.

in MAHAN et al. v. WILSON et al. (No. 80.) 1925.)

[3] It is also earnestly insisted that the evidence is not sufficient to sustain the amount of damages awarded by the verdict of the jury. The verdict of the jury shows, before stated, that the value of the

as

bolts was appraised by the jury at $12 per

cord. Appellees introduced several witness-
es as to the value of the bolts, and the tes-
timony showed a range of opinion from $12
Warren tes-
to $20 per cord for the bolts.
tified that the value of the bolts on the yard
included the price of the stumpage and the
cost of cutting and hauling, making a to-
tal of $15 per cord, and that the expense of
hauling to the nearest railroad shipping point
without first sawing the bolts into staves
was prohibitive, being practically the value
of the bolts themselves. Warren's testimony
showed that if the bolts could have been saw-
ed up at the yard where they were stacked,
they were worth $15 per cord. Mr. Wilkin-
son, who was a stave dealer at Palestine, a
railroad point, testified that bolts were worth
$15 per cord at the railroad shipping point
and about $3 less than that where they had
to be hauled a considerable distance. He ex-
plained that the price was almost prohibitive
for hauling bolts a long distance, but that
after they were sawed into staves they could

(Supreme Court of Arkansas. June 29,

1. Drains 13-Jurisdiction of county court of district, in proceeding to organize drain. age district, held not defeated because part of area involved situated in another district.

The jurisdiction of county court of Osceola district, in Mississippi county, created under

Acts 1901, No. 81, to hear and determine petition for organization of drainage subdistrict, was not defeated because part of area involved was situated in Chickasawba district, created by Acts 1919, No. 468.

2. Drains 14 (3)-County court may make order creating district, without finding as to interests of parties, where petition by majority of property owners.

Under Crawford & Moses' Dig. §§ 3607, 3650, where petition for creation of drainage district or subdistrict is by majority of property owners, county court may, without finding as to interests, make order creating district. 3. Drains 14 (2)—Implied that notice of hearing of petition to organize subdistrict contain description of property to be embraced.

It is necessarily implied, under Crawford & Moses' Dig. § 3650, relating to organization of drainage subdistricts, that description of property to be embraced should be contained in notice of hearing, in order to apprise property owners of proceedings affecting their interests.

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