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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. p. 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 The law on this subject was correctly anall there was to do. He had nothing to do nounced in the instruction No. 1 given by the with taking in the money. That was the court on its own motion, in which the court duty of the secretary. Witness was not an told the jury that, if the application of Mrs. officer of the company, but was an employee, Baker was made in good faith and the first and was acting in that capacity when he went premium paid by her, and that all the other up to settle with Roy Dillard. Witness did premiums were paid by the appellee, Dillard, not answer the correspondence for the com- the contract was a valid one, and Dillard pany. Witness was asked, “Do they take up would be authorized to recover, unless there settlements with you and confer with you was a fraud in the representation as to Mrs. about it?" He answered, “No, sir; they send Baker's age. The issue as to whether or not me out with instructions, and I do it. Q. the certificates were issued through fraud They took up the Roy Dillard matter with perpetrated upon the appellant by the appelyou? A. They took it up with him, and then lee was submitted under instructions that sent me to look after it.” Witness further certainly were not prejudicial to the appeltestified that Roy Dillard had a claim against lant, and of which it therefore has no right to the appellant for $2,000. Witness was acting complain. under the instructions of appellant when he [3] 2. The court did not err in refusing to made the settlement with Roy Dillard. allow the appellant to read in evidence the

Appellant asked the court to instruct the statement of Mrs. Martha Baker, made to jury to return a verdict in its favor, which appellant's agent, reduced to writing, and prayer the court refused, and to which ruling purporting to be signed by Mrs. Baker. Mrs. the appellant duly excepted. The court, on Baker was not a party to the action, nor is its own motion gave to the jury two instruc- she a party in interest, and most assuredly tions, only one of which we deem it necessary she was not representing the appellee as his to set out. No. 2 is as follows:

agent in making the statement. Lincoln Re "You are instructed that, unless you find serve Life Ins. Co. v. Smith, supra. There from a preponderance of the evidence that the fore the purported statement was but the plaintiff, J. F. Dillard, paid all assessments baldest hearsay, and under no rule of evidue by him or Mrs. Martha Baker, to whom dence was the same admissible. Mrs. Baker the policies in this case were issued, of which

was living, and her testimony, if thought to either of them had notice, you will return your be competent and relevant to the issue involvverdict for the defendant."

ed, could have been adduced in some of the

methods authorized by the rules for the proThe jury returned a verdict in favor of the

duction of evidence. appellee in the sum of $220, and from a judgment entered in his favor for that sum is tion in the case is whether or not there was

[4] 3. The principal and only serious ques. this appeal. [1, 2] 1. In De Loach v. Ozark Mutual Life issue of whether or not the appellee was entir

any testimony to support the verdict on the Association, 148 Ark. 414, 230 S. W. 268, 14 tled to recover on the alleged promise of the A. L. R. 921, we declared the law to be that a appellant, through its agent, Wagner, to can: recovery cannot be had where the certificate cel the certificates and return to the appellee of insurance was obtained by actual fraud

the assessments or premiums that had been that is, where there was a willful purpose to paid by him. This issue was submitted to deceive on the part of the insured or the ap. the jury by the court's instruction No. 2, set plicant—but that premiums may be recovered out above. The phraseology of this instrucin all other cases. Here the court, in an in- tion was not as clear as it should have been, struction given at the instance of the appel- but there was only a general objection to it

, lant, told the jury, in effect, that if the age and, when taken in connection with instrucof Mrs. Martha Baker, the assured, was over tion No. 8, given at the instance of the ap 60 years at the date of the application for pellant, it could not have confused and mismembership in the association, they should led the jury. By these instructions the jury find for the appellant, unless they further was told, in substance, that unless Wagner found from the evidence that her age was not was the agent of appellant, and bad authority carelessly, willfully, or knowingly misstated to make the statements which the appellet in the application. In other words, if Mrs. and his witnesses attributed to him, concernBaker was over 60 years of age at the time ing the cancellation of the certificates and the of her application, and it was willfully, neg- return to the appellee of the assessments ligently, or knowingly misstated that she was paid by him, and acted within the scope of under 60 years of age, then the verdict should such authority, then the appellant would not be in favor of the appellant. It will thus be be bound by such statement, and the verdict seen that the instructions of the court were should be in favor of the appellant. more favorable to the appellant than it was These instructions, when taken together, entitled to under the doctrine. announced in sufficiently declare the law in conformity

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(273 S.W.) with many decisions of this court upon the thority which he has; such authority as a reaquestion as to whether or not Wagner was sonably prudent man, using diligence and dis. the agent of the appellant, and whether or cretion, in view of the principal's conduct, not he had authority to enter into a contract would naturally suppose the agent to possess.' with appellee to cancel the certificates and Pierce v. Fioretti, 140 Ark. 306-313, 215 S. W.

646, 648. return the amount of the assessments which had been paid by the appellee, as set up in There is no reversible error in the record, his complaint, and whether or not he acted and the judgment must therefore be affirmed. within the scope of his authority. See An. It is so ordered. derson-Tully Co. v. Gillett Lbr. Co., 155 Ark. 224, 244 S. W. 26; Oliver Construction Co. v. Erbacker, 150 Ark. 549, 234 S. W. 631, and cases there cited.

E. C. ATKINS & CO. V. ROLFE & WAR(5-7] It is an exceedingly close question as

REN. (No. 51.) to whether Wagner, the employee of the ap- (Supreme Court of Arkansas. June 15, 1925. pellant, had authority to make the contract

Rehearing Denied July 13, 1925.) alleged. The testimony is abundant that Wagner assumed the authority to make the 1. Appeal and error Om930(1)-Evidence given contract alleged, but of course the appellant

greatest probative force in testing its suffi.

ciency.
was not bound by any assumption of au-
thority by him. However, his testimony

In testing legal sufficiency of evidence, apshows that he was authorized by the appei- pellate court will give it greatest probative

force to which it is reasonably susceptible in lant in certain cases and under certain cir- favor of verdict. cumstances to make settlements for the appellant. He was out on a mission of that 2. Damages @mw 189—Evidence held sufficient to character, as shown by the testimony of both

show notice of special circumstances causing

damage through negligent failure to complete the appellee and the appellant, when the al

contract for repair of machinery. leged contract was entered into upon which

In action for damage caused by negligent appellee predicates his right to recover.

failure to repair saw within agreed time, reWagner settled a claim with the appellee's sulting in decay and loss of stave bolts, evi

The appellee's testimony tended to dence held sufficient to show knowledge of speprove that, after this visit and alleged agree-cial circumstances at time of contract to charge ment, the appellant did not give him any fur- defendant with special damages. ther notice of the due dates of assessments which it had done up to that time. Appellee 3. Damages em 189—Evidence sufficient to sup

port finding of special damage for negligent had paid every month from the time the pol

failure to perform contract for repair of maicies were taken out until the time of the al

chinery. leged agreement with Wagner. The testi

In action for damage caused by negligent mony of the secretary of the appellant direct- failure to repair saw within agreed time, rely controverts the above testimony of the ap- sulting in decay and loss of stave bolts, evipellee, but this conflict made an issue for the dence as to value of staves into which bolts jury. If the appellant, after the alleged con were sawed held sufficient to warrant finding tract between appellee and Wagner in Sep that bolts were worth $12 per cord, notwithtember, ceased to give the appellee notice of standing there was no market value for bolts the date when assessments were due, which

at mill where those in controversy were located, the jury had a right to find from the testimony was a fact, then this was a circum. County; E. D. Robertson, Judge.

Appeal from Circuit Court, St. Francis stance tending to prove that the appellant had clothed Wagner with the authority to

Action by E. C. Atkins & Co. against Rolfe make the contract and that it was treating & Warren, copartners, in which defendant such contract as valid and binding. The cir- filed counterclaim. From judgment for decumstances, as disclosed by the testimony of fendants on their counterclaim, plaintiff apappellee's witnesses, and also of appellant's peals. Affirmed. witnesses, were sufficient to make it an issue Banks & Harrelson, of Memphis, Tenn., of fact as to whether or not the appellant | for appellant. had clothed Wagner with apparent authority R. J. Williams, of Forrest City, for appelto make the contract.

lee. [8] This court has often approved the statement of the law as to apparent authority an McCULLOCH, C. J. Appellant is a cornounced in 2 C. J. 573, as follows:

poration engaged in manufacturing and sell"Apparent authority in an agent is such ing sawmill machinery. Its principal place authority as the principal knowingly permits of business is Indianapolis, Ind., but it opthe agent to assume or which he holds the erates a branch plant at Memphis, Tenn., and agent out as possessing; such authority as he it also carries on the business of repairing appears to have by reason of the actual au machinery. Appellees were, in the year 1920,

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copartners engaged in the business of manu assured him that the saw would be ready facturing staves. Their place of business for reshipment in ten days or two weeks. was in Poinsett county, Ark., near Marked Warren testified that he told , appellant's Tree. They bought timber and had it cut manager about having a large quantity of into bolts and hauled, to the millyard, and bolts on the yard which at that season of there the bolts were sawed into staves and the year would sour and spoil very quickly, carried to market. The millyard was about and that they had to depend upon getting the 12 miles distant from Marked Tree, the saw back in order to convert the bolts into nearest railroad shipping point.

staves before the bolts spoiled. The saw Appellant instituted this action against was not returned to appellees in the time appellees to recover, on account, for a lot specified, and Warren testified that he went of mill machinery sold and delivered, and to Memphis to see appellant about it, and · appellees admitted liability for the amount of that the manager claimed that the saw had the account but presented a counterclaim for never been received. Claim was filed against damages alleged to have been caused by neg- the railroad company, and a tracer was sent ligent delay of appellant in repairing a saw out by that company, which developed the which appelleés had delivered to appellant fact that the saw had been promptly transfor that purpose.

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 14712 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 [1] The principal, contention is that the that they accepted delivery of the saw at evidence is insufficient to sustain the verdict, Vandale instead of at Marked Tree, and either as to liability for special damages or they claim no damages on that account. as to the amount. In other words, the con- Appellees testified that they made reasonable tention is that the evidence is not legally suf-effort to get another saw to use in sawing ficient to sustain the verdict. In testing

up the bolts, but were unable to get one, the legal sufficiency of the evidence, we must, and that the bolts became worm-eaten and under well-settled rules announced by this

sour and valueless. court, give it the greatest probative force

The law prevailing in this state in regard to which it is reasonably susceptible in favor to the recovery of special damages originated of the verdict.

in the English case of Hadley v. Baxendale, [2] The saw about which the controversy 9 Exch. 341, and was adopted by this court relates was one which was used by appel- in Hooks Smelting Co. v. Planters' Compress lees at the mill for converting bolts into Co., 72 Ark. 275, 79 S. W. 1052. Since then staves. The saw had to be re-steeled, and there have been many decisions of this court appellees shipped it by railroad to appel- on the question, all adhering to the rule there lant at Memphis, Tenn., from the station at announced. It is only necessary to mention Marked Tree. The saw was incased in a

a few of the later cases. Crutcher v. C. 0. · box, with the address of appellant placed & G. R. Co., 74 Ark. 358, 85 S. W. 770; C. thereon, and also the initials of appellees R. I. & P. Ry. Co. v. Planters' Gin Co., 88 were written on the box in large letters with Ark. 77, 113 S. W. 352; Sager v. Jung & a blue keel. The shipment was made at

Sons Co., 143 Ark. 506, 220 S. W. 801; Miles Marked Tree on September 3, 1920, and was

V. Am. Ry. Express Co., 150 Ark. 114, 233 billed to appellant at Memphis, and it reach

S. W. 930. The substance of the rule of ed Memphis the next day and was delivered by the railroad company to a local transfer law is that damages arising on account of company and by the latter to appellant. The special circumstances, or, in other words, shipment was made without any prearrange- special damages, are not recoverable on acment between the parties concerning the re-count of negligent breach of contract unpairs to be made on the saw; but on the less notice has been given at the time of the next day after the shipment was made, War- making of the contract, or before, of the cirren, one of the appellees, went to Memphis cumstances from which the special damage to see about having the work done, and a might arise, but that such damages are recontract was there made between appellant coverable if, at the time or before the makand appellees for repairing the saw. War-ing of the contract, the attention of the parren testified that he explained to appellant ties to the contract is called to the special the conditions with which they were sur circumstances. The testimony in this case rounded in regard to needing the saw as soon is sufficient, we think, to bring the case as possible, and that appellant's manager within the rule of law just announced. AC

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(273 S.W.) cording to Warren's testimony, he told ap- , be hauled for a reasonable price. There was pellant's manager, at the time the contract another witness who testified that bolts were was made for the repairing of the saw-there worth $15 to $20 per cord. We think that having been no previous arrangement be the testimony was sufficient to warrant a tween the parties for the work to be done-- | finding that the bolts were worth at least about having a large quantity of bolts on the $12 per cord, the value appraised by the yard and that they would be entirely de- jury. Counsel for appellant insist that the pendent on securing the saw within a short testimony had no application because it did time in order to get the bolts sawed into not relate to bolts at the place where these staves before they spoiled. There was proof were located, but we are of the opinion that that notice was given of all the circumstances the testimony was applicable as a guide to which caused the special damage. The evi- the jury in determining the loss sustained dence was also legally sufficient to establish by appellees in having the bolts destroyed. the fact that the bolts were damaged to the It is true tbat none of the witnesses testiextent that they became entirely valueless fied that' there was a market value for on account of appellant's failure to repair bolts at the place where those in controversy the saw, and that appellees were unable by were located. This was a place 12 miles reasonable effort to avert or mitigate the distant from any railroad station, and, damage. There is a sharp conflict in this of course, there was one buying bolts testimony, and there are apparent inconsist- at that place; but the testimony showed encies in the testimony of some of the wit- what the bolts were worth if they could nesses; but we must treat these conflicts as have been sawed into staves and then haulhaving been settled by the verdict of the ed to the railroad shipping point. The evijury in favor of the contention of appellees. dence was sufficient, therefore, to sustain Appellant's manager testified as a witness, the verdict. and denied that he had agreed to repair the The only other assignment urged here is saw within any particular time, and denied that the court failed to charge the jury sufthat he had been told of any special cir- ficiently on the subject of the preponderance. cumstances which would cause damage in of the evidence, but we are of the opinion the event of delay in making the repairs. It that the court's charge on this subject was is not our province to pass upon the weight sufficient. of the evidence, but we merely determine its Affirmed. legal sufficiency, and if found sufficient, we are not at liberty to disturb the verdict unless the trial court committed error in MAHAN et al. v. WILSON et al. (No. 80.) submitting the issues to the jury.

[3] It is also earnestly insisted that the (Supreme Court of Arkansas. June 29, 1925.) evidence is not sufficient to sustain the 1. Drains Cum 13Jurisdiction of county court amount of damages awarded by the verdict

of district, in proceeding to organize drain. of the jury. The verdict of the jury shows,

age district, held not defeated because part of as before stated, that the value of the

area involved situated in another district. bolts was appraised by the jury at $12 per district, in Mississippi county, created under

The jurisdiction of county court of Osceola cord. Appellees introduced several witness- Acts 1901, No. 81, to hear and determine pees as to the value of the bolts, and the tes- tition for organization of drainage subdistrict, timony showed a range of opinion from $12 was not defeated because part of area involved to $20 per cord for the bolts. Warren tes- was situated in Chickasawba district, created tified that the value of the bolts on the yard by Acts 1919, No. 468. included the price of the stumpage and the cost of cutting and hauling, making a to- 2. Drains 14(3)--County court may make

order creating district, without finding as to tal of $15 per cord, and that the expense of interests of parties, where petition by major. hauling to the nearest railroad shipping point ity of property owners. without first sawing the bolts into staves Under Crawford & Moses' Dig. $S 3607, was prohibitive, being practically the value 3650, where petition for creation of drainage of the bolts themselves. Warren's testimony district or subdistrict is by majority of property showed that if the bolts could have been saw

owners, county court may, without finding as

to interests, make order creating district. ed up at the yard where they were stacked, they were worth $15 per cord. Mr. Wilkin- 3. Drains Om 14(2)—implied that notice of son, who was a stave dealer at Palestine, a hearing of petition to organize subdistrict railroad point, testified that bolts were worth

contain description of property to be em

braced. $15 per cord at the railroad shipping point and about $3 less than that where they had Moses' Dig. § 3650, relating to organization of

It is necessarily implied, under Crawford & to be hauled a considerable distance. He ex- drainage subdistricts, that description of propplained that the price was almost prohibitive erty to be embraced should be contained in nofor hauling bolts a long distance, but that tice of hearing, in order to apprise property after they were sawed into staves they could I owners of proceedings affecting their interests.

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

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4. Drains 14 (2)-Affidavit not exclusive | 12. Drains 15–That benefited lands of conevidence of publication of notice of hearing. tiguous districts omitted held not to render

Crawford & Moses' Dig. $ 6808, does not organization of subdistricts invalid. make affidavit of editor, proprietor, manager, or That lands in two contiguous drainage dischief accountant sole or exclusive evidence of tricts, which will be benefited by organization publication of notice of hearing of petition to of subdistrict in question, were omitted from organize drainage subdistrict.

such organization, does not affect its validity,

as such lands can be taxed for any additional 5. Appeal and error Om 931(4)-Where dis benefit accruing by reason of new improvement.

crepancy between description of property in original petition for organization of drainage 13. Drains Om 13–That subdistrict comprises subdistrict and that in notice of hearing not nearly whole of original district and cost of shown, finding of no discrepancy presumed. improvement greater not objectionable.

Where opponents to organization of drain That draipage subdistrict in question, in age subdistrict failed to show variance between area comprises nearly whole of original disdescription in published notice of hearing, un trict, and cost of improvement contemplated is der Crawford & Moses' Dig. $ 3650, and that greater in extent than that of original district, contained in petition for formation of district, does not render it invalid; there being no limiSupreme Court will presume that trial court tation thereon in Crawford & Moses' Dig. $ found that there was no discrepancy as alleged

3050. 6. Drains Om 14(2)-Signers of petition cannot Wood and Hart, JJ., dissenting,

withdraw names after petition filed, except for cause.

Appeal from Circuit Court, Mississippi After petition for organization of drainage County; W. W. Bandy, Judge. subdistrict had been filed, signers thereof cannot withdraw their names, except for cause. Petition by R. E. Lee Wilson and others 7. Drains Em 14(3)-Court must create district for formation of a drainage subdistrict, to

where requirements of statute complied with, which 'T. J. Mahan and others filed a remonand petition contains names of majority of

strance. From a judgment of the circuit landowners.

court affirming an order of county court, The signing of petition for organization of creating a subdistrict in cordance with the drainage subdistrict is in nature of election, prayer of the petition, remonstrators appeal. and, if requirements of statute are complied Affirmed. with, and petition contains names of majority of landowners, it is duty of court to create dis Sam Costen, of Memphis, Tenn., and Little, trict.

Buck & Lasley, of Blytheville, for appellants.

J. T. Coston, of Osceola, for appellees. 8. Drains E 14(3)-Burden on contestants to

show that names appearing on petition not
signed by authority.
The burden of proof is on those who con-

McCULLOCH, C. J. Grassy Lake and test petition of property owners for organiza- Tyronza drainage district No. 9 of Missistion of drainage subdistrict to show that names sippi county, created by an order of the appearing thereon were not signed by author county court in May, 1911, pursuant to the ity.

general statutes (Crawford & Moses' Digest, 9. Drains Om 14(2)--Conditional signatures on § 3607 et seq.), providing for what is com

petition valid, where no request made that monly termed the "alternative system of they be withdrawn.

drainage districts," covers territory in MisWhere group of persons signing petition sissippi county about 40 miles long, of an for organization of drainage subdistrict did so average width of about 7 miles, and it on condition that their names were to be with reaches from the northeast corner of the held unless commissioner should resign, and county to within a few miles of the souththeir names were filed though commissioner did

west corner. The principal ditches of the not resign, such signatures are valid, where they did not appear and ask that their names

district begin at the foot of Clear creek, a be withdrawn.

few miles southeast of Blytheville, and fol. 10. Drains ew14(3)-Challenged signature to which runs from the northeast to the south

low the general course of the Tyronza basin, petition held properly ratified after proceeding reached circuit court.

west, parallel with Little river. Since the Where proceedings for organization of completion of the ditches in the district acdrainage subdistrict were still in progress in cording to the plans of the improvement, circuit court, it was not too late for challenged numerous owners of real property within the signature of company to petition to be ratified boundaries of the district filed their petition by proper officers.

in the county court of Mississippi county, 11. Drains Om 14(2)-Facts held to show that praying for the formation of a subdistrict,

petition signed by majority of acreage prop- to be composed of certain lands wholly witherty owners in district.

in the original district, for the purpose of Facts held to show that petition for orga- adding additional improvements in the way nization of drainage subdistrict was signed by of new ditches and widening and extending majority in acreage property owners in district, the main ditch as an outlet.

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