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general appearance resembled one of the rob- less the value of the particular property bers who fled on their approach.

found in his possession exceeds $10.” The We think this evidence was clearly com- only point raised on this appeal is an assignpetent for the purpose for which the court ment of error which relates to the refusal of admitted it. While this evidence does show the court to give the instruction referred to the commission of another crime than the above. The case is therefore ruled by the one charged in the indictment it also tends decision of this court in the recent case of to show that appellant participated in the Witt v. State, 177 S. W. 887, where we held commission of the crime charged in the in- directly contrary to the contention of appeldictment and refutes appellant's proof of an lant in this case. alibi.

Judgment affirmed. [2] The rule is well established that guilt of one crime cannot be proved as a circumstance from which to infer guilt of another, where such proof is not offered to show mo- BEATRICE CREAMERY CO, V. GARNER tive, intent, or design; but proof is not to be

et al. (Nos. 93, 151.) excluded because it proves the commission of (Supreme Court of Arkansas. July 5, 1915.) a different crime, if it also tends, in a mate- 1. PRINCIPAL AND AGENT 145—LIABILIrial way, to prove the guilt of the crime TIES AS TO THIRD PERSONS UNDISCLOSED

AGENCY charged. Davis and Thomas v. State, 174

Where an agent makes a contract for an S. W. 568.

undisclosed principal, both the principal and The judgment of the court below is there- the agent may be held liable at the election of fore affirmed.

the party who dealt with the agent.

Ed. Note.-For other cases, see Principal and
Agent, Cent. Dig. $ 499, 513-520; Dec. Dig.

Om 145.]
WHITE v. STATE. (No. 127.)

2. APPEAL AND ERROR Om 1009 - REVIEW (Supreme Court of Arkansas. Sept. 27, 1915.) FINDINGS OF FACT. CRIMINAL LAW O 511-LARCENY O 65-Ey

Findings of fact made by a chancellor will IDENCE-POSSESSION OF PROPERTY STOLEN. be upheld on appeal, unless they are against the

Unexplained possession of a portion of clear preponderance of the evidence. property recently stolen may be considered in [Ed. Note.-For other cases, see Appeal and corroboration of testimony of accomplices in a Error, Cent. Dig. 88 3970–3978; Dec. Dig. Om prosecution for grand larceny, although the val- 1009.) ue of the property so found does not exceed $10. 3. PRINCIPAL AND AGENT 140 – RIGHTS

[Ed. Note. For other cases, see Criminal Law, AND LIABILITIES OF THIRD PERSONS-UNCent. Dig. 88 1128-1137; Dec. Dig. On 511 DISCLOSED AGENCY. Larceny, Cent. Dig. 8 160; Dec. Dig. Cum 65.) Where a commission company made a conAppeal from Circuit Court, Miller Coun- sive sale of butter shipped by it, the mere fact

tract with a creamery company for the excluty; Geo. R. Haynie, Judge.

that an employé of the commission company Anderson White was convicted of grand subsequently agreed to take over all consignlarceny, and he appeals. Affirmed.

ments of butter to it from the creamery com

pany at actual cost did not make the employé Wm. L. Moose, Atty. Gen., and John P. an undisclosed principal of the commission comStreepey, Asst. Atty. Gen., for the State.

pany, although the creamery company had no

knowledge of the transaction. McCULLOCH, O. J. Appellant was con

[Ed. Note. For other cases, see Principal victed of the crime of grand larceny, under and Agent, Cent. Dig. $$ 496, 498; Dec. Dig.

Om 140.) an indictment which charged the commission of the crime by stealing merchandise from 4. ACTION Cm 57 — CONSOLIDATION - CLAIMS

ARISING OUT OF THE SAME TRANSACTION, freight cars in the possession of the St. Louis,

The employé of a commission house filed a Iron Mountain & Southern Railway Company. bill of interpleader seeking to join a creamery Two other men who were indicted for the company, and the receiver of the commission

house, as defendants, to determine title to monsame crime testified that they, together with ey obtained by complainant from the sale of appellant, burglarized the box cars and stole butter, sold to him by the commission house, the property described in the indictment, of and claimed by the creamery company. The the value of more than $10. The testimony creamery company filed an independent action

against complainant to recover such amount, of the accomplices was corroborated by proof on the ground that plaintiff was an undisclosed on the part of other witnesses of unexplained principal of the commission house. Held, that possession of certain articles of the property act of May 11, 1905, the object of which is to

the suits were properly consolidated, under the by the appellant shortly after the crime was save repetition of evidence and unnecessary concommitted, as related by the accomplices. sumption of time and costs in actions depending There was proof tending to show that the ar- on the same evidence, or arising out of the same

transaction. ticles in possession of appellant constituted a portion of the merchandise taken from the Dig. SS 632-675; Dec. Dig. Om57.]

[Ed. Note. For other cases, see Action, Cent. cars..

McCulloch, C. J., and Kirby, J., dissenting. Appellant's attorney asked the court to instruct the jury that unexplained possession Appeal from Pulaski Chancery Court; Jno. of a portion of the recently stolen property E. Martineau, Chancellor. could not be considered in corroboration "un Suit in interpleader by W. H. Garner and

Ark.)

BEATRICE CREAMERY CO. y. GARNER

161

another, seeking to join as defendants the ery company in the city of Little Rock; that Beatrice Creamery Company and J. S. Ma- subsequently the commission company assignloney, as receiver of the T. H. Bunch Com- ed its contract with the creamery company mission Company, with which was consolidat- to W. H. Garner, that thereafter Garner coned an independent action by the Beatrice tinued to act as exclusive seller of the butCreamery Company against W. H. Garner ter of the creamery company in Little Rock ; and another, for a sum deposited in the reg- that the creamery company since then has istry of the court. From an order directing shipped butter to Little Rock of the contract the clerk of the court to pay the fund to the value of $3,658.77, and that the same was actrustee in bankruptcy of the Bunch Commis- cepted and received by the said Garner, but sion Company, the Beatrice Creamery Com- that he has failed and refused to pay for pany appeals. Affirmed.

same.

The complaint further alleges that L. E. Hinton and Comer & Clayton, all of Garner admitted liability for the purchase Little Rock, for appellant. H. M. Trieber, of price of a part of said butter in the sum of Little Rock, for appellees.

$1,707.75, and that that amount had been

paid by him to W. A. Hicks, as trustee, with HART, J. On November 23, 1914, W. H. the understanding that the latter should hold Garner and the German National Bank of the same for the parties held to be entitled Little Rock, Ark., as trustee, filed a bill of to it. interpleader in the Pulaski chancery court

The prayer of the complaint is that Hicks in which the Beatrice Creamery Company, a. be enjoined from paying said sum of money corporation organized and doing business un- so held by him to any one until the final der the laws of the state of Oklahoma, and hearing of this cause, and that said amount J. S. Maloney, as receiver of the T. H. Bunch then be paid to said creamery company to be Commission Company, a domestic corpora- applied as a credit on the amount alleged to tion, were asked to be made parties defend- be due it by said Garner, and that it have ant.

The bill of interpleader alleges that judgment against Garner for the balance alduring the months of September and October, leged to be due, namely, the sum of $1,951.02. 1914, the Beatrice Creamery Company ship- On motion of W. H. Garner, the court orderped and consigned to the T. H. Bunch Com- ed that that portion of the action instituted mission Company, at Little Rock, Ark., but by the Beatrice Creamery Company against ter of the value of $1,707.75; that upon the W. H. Garner and W. A. Hicks for $1,707.75 arrival of said butter at Little Rock it was deposited in the registry of the court be conturned over by the Bunch Commission Com- solidated with the interpleader suit. The pany to W.: H. Garner; that Garner sold court sustained a demurrer to the complaint said butter of the value of $1,707.75 to re- of the creamery company asking a judgment tail merchants; that the proceeds were in against Garner for the sum of $1,951.02 and his possession until October 16, 1914, when dismissed his complaint in that respect withthe same was paid over by him to the Ger- out prejudice to his bringing an action at man National Bank of Little Rock, Ark., a's law. trustee, to be held by it pending settlement At the hearing of the consolidated causes, of the ownership of said money; that both the testimony of W. H. Garner and T. H. the Bunch Commission Company and the Bunch was taken before the court orally, and Beatrice Creamery Company were claiming their testimony reduced to writing, and by said fund and demanding payment from the order of the court filed as their depositions defendant Garner. The plaintiffs paid said in the cause. It appears from their testimoney into the registry of the court and mony that the T. H. Bunch Commission Comasked that the receiver of the Bunch Commis- pany, before it became insolvent, did a large sion Company and the Beatrice Creamery commission business in the city of Little Company be compelled to interplead for said Rock, that a part of its business was to sell fund. The receiver of the Bunch Commis- butter, and that it had a contract with the sion Company entered his appearance to the Beatrice Creamery Company to take the ensuit, but no service of any kind was had upon tire output which is shipped to the city of the creamery company, and that company Little Rock. did not enter its appearance to the action. The commission company had a standing

The Beatrice Creamery Company filed an order with the creamery company for its independent action in the chancery court butter, and payment was usually made once against W. H. Garner and W. A. Hicks, cash- a week, though at times longer intervals beier of the German National Bank. The plain-tween payments occurred. W. H. Garner was tiff alleges that the T. H. Bunch Commission in the employ of the Bunch Commission ComCompany entered into a contract with it pany and had charge of the sales of butter whereby the creamery company agreed to made by it to the retail merchants of Little sell and deliver to said commission company Rock. Subsequently the Bunch Commission its output of butter which was shipped and Company made an agreement with Garner, delivered at Little Rock, Ark., and that said whereby the latter was to take off its hands commission company was to have the exclu- the butter consigned to it by the creamery sive right to sell the butter of the cream- company at the price that it paid the latter therefor; in other words, the commission poration engaged in the general commission company agreed with Garner to sell him the business. A part of its business was to sell butter it received from the creamery com- butter, and it made a contract with the pany at the actual cost price, and Garner was creamery company for the exclusive sale of thereafter to sell the butter to the retail the butter which it shipped to Little Rock. trade of Little Rock at whatever price he It was in the habit of receiving daily condesired. The Bunch Commission Company signments of butter from the creamery on had a rating with the creamery company, but open account. The commission company had Garner was unknown to it. The commission a credit with the creamery company, and company continued to receive consignments nothing was said or known by the creamery of butter from the creamery company under company of any other party to the transaction. its contract with that company and made its Garner had no credit with the creamery comremittances therefor about once a week as it pany and was not known by it. He made had agreed to do. It turned the butter over his payments direct to the Bunch Commission to Garner at its actual cost, and Garner Company, and the commission company sent made settlements with the commission com- its own checks to the creamery company in pany once a week therefor. Prior to the in-payment for the butter. At the time the constitution of this action, the Bunch Commis-tract between the Bunch Commission Comsion Company became insolvent, and a receiv- pany and the Beatrice Creamery Company er was appointed to take charge of its assets. was made, Garner was an employé of the

The court found that the T. H. Bunch Com-commission company. No other contract was mission Company was not the agent of Gar-made by any one with the creamery company. ner in the purchase of the butter from the The butter was consigned by the creamery creamery company in the transaction in company to the commission company under volved in this suit, and that the transaction the original contract. Garner could in no was one of sale on open account by the sense be deemed an undisclosed principal creamery company to the commission com- when the original contract was made between pany and a resale on open account by the the commission company and the creamery commission company to Garner, and Garner, company. The mere fact that he subsequenthaving deposited the money in the registry ly agreed with the commission company to of the court, was discharged from all liability take over all consignments of butter to it to either the Bunch Commission Company or from the creamery company at actual cost the Beatrice Creamery Company. The clerk did not have the effect of making him an unof the court, with whom the money had been disclosed principal. deposited, was directed to pay the same to [4] The court did not err in the consolidathe trustee in bankruptcy of the Bunch Com- tion of the causes under the act of May 11, mission Company. The Beatrice Creamery 1905. The object of this act providing for Company has appealed.

the consolidation of causes was to save a rep[1] It is the well-settled law of this state etition of evidence and unnecessary consumpthat, where an agent makes a contract for an tion of time and costs in actions depending undisclosed principal, both the principal and upon the same or substantially the same evithe agent may be held liable at the election dence or arising out of the same transaction. of the party who dealt with the agent. Mis St. L., I. M. & S. R. Co. v. Raines, 90 Ark. sissippi Valley Construction Co. v. Chas. T. 482, 119 S. W. 266; Little Rock Gas & Fuel Abeles & Co., 87 Ark. 374, 112 S. W. 894; Co. et al. v. Coppedge, 172 S. W. 885. Bryant Lumber Co. v. Crist, 87 Ark. 434, 112 In the case of St. L., I. M. & S. R. Co. v. S. W. 965. This is conceded to be the law Broomfield, 83 Ark. 288, 104 S. W. 133, the by both parties, and it is the contention of court said that the act leaves to the discrecounsel for appellees that, where one is tion of the trial court the consolidation of sought to hold one as undisclosed principal actions of like nature relative to the same for goods bought, it is essential that the in- questions pending before the court without termediate party through whom the goods reference to the identity of the parties and were secured shall have been the agent of without restriction as to the causes of acthe principal sought to be held and not his tion which may be joined in the same suit. vendor, and that, the court having found that It follows that the decree will be affirmed. the Bunch Commission Company was the vendor of the butter to Garner and not the McCULLOCH, C. J. (dissenting). The unagent of the latter in purchasing the same, disputed evidence in this case is to the effect its finding of fact in that respect should not that Bunch Commission Company concluded be disturbed.

to go out of the business of selling butter to [2, 3] It is the settled rule of this court retail men in Little Rock, and turned their that the findings of fact made by a chancellor contracts with the Beatrice Creamery Comwill be upheld on appeal unless they are pany over to Garner to receive the butter, to against the clear preponderance of the evi- pay for it, and sell it. There is no conflict dence. Tested by this rule, we think the whatever in the evidence, and it is not suffifindings of the chancellor should be upheld. cient to warrant the inference that there was Ark.)

HUGHES y. ROBUCK

163

Company to Garner. Garner testified that Commission Company, by permitting the conBunch Commission Company decided to go tinued use of its name in receiving delivout of the city business, and, as a matter oferies of butter under the contract without accommodation to him (Garner), turned the disclosing Garner's connection with the contract with the Beatrice Creamery Com- transaction, rendered itself liable to the pany over to him, and that he "ran the busi- creamery company for the price of the butness, merely using Bunch's name for the pur- ter so received, but Garner is liable too, for, pose of getting the butter.” The testimony according to the true import of the transacof T. H. Bunch was to the same effect. Flis tion, he was the real purchaser of the butter, statement is as follows:

and the debt for the price was in fact his "It was simply a favor we were trying to ex- debt, and not that of the commission comtend Mr. Garner for past services; he had been faithful to us for many years. We turned the pany. Garner is willing to pay for the butcontract we had with the Creamery Company ter, and has in fact paid the amount into the over to Mr. Garner and continued to let him registry of the court. Bunch Commission order

the butter in our name, simply as a mat- Company has no just claim to the amount ter of accommodation to him."

They both testified that the sole reason for so paid, and, according to settled principles leaving the contract in the name of the of law, it should be recovered by the creamBunch Commission Company was that they ery company and not by the general creditors were afraid that if they undertook to get

of the Bunch Commission Company. a new contract in Garner's name some other

The justice of that view is made plain dealer might secure the contract with the by the statement in one of the text-books on creamery company, and it was decided that the law of agency, giving a reason for the the best way was to leave the contract in rule of liability of an undisclosed princithe name of the Bunch Commission Compa

pal: ny. There is no doubt about the inference settle with some one-being liable to the agent,

"Inasmuch as the principal must ordinarily which can be drawn from the statements of perhaps upon an express contract of indemnity those two witnesses, who were the only ones or reimbursement, or upon an implied one wherwho testified on the subject.

ever the nondisclosure of the principal and the The effect of the transaction was to make tute such a violation of duty as to disentitle the

pledging of the agent's own credit do not constiit an assignment of the contract by Bunch agent to such relief-it seems to be a convenCommission Company to Garner, and the ient 'short-cut, if nothing more, to give the commission company became the agent of instead of requiring him to pursue the agent

third part a direct claim upon the principal Garner in performing the contract for the who will then pursue the principal. Where this purchase of the butter. The fact that no is attempted before the principal has paid or such relation existed at the time the orig settled with agent—and this seems to have been

the typical case in the first instance-nothing inal contract was made with the creamery but more or less technical rules of procedure company does not alter the law applicable would seem to stand in the way of it.” 2 Meto the facts of the case. The contract was chem on Agency (2d Ed.) $ 1729. executory, and the sales thereunder were

KIRBY, J., concurs in the views here anconsummated only when deliveries of butter nounced. were made in installments from time to time. No sale was complete until there was a delivery of the butter. Therefore, when the HUGHES et al. v. ROBUCK et al. (No. 101.) installments were delivered through Bunch (Supreme Court of Arkansas. July 5, 1915.) Commission Company to Garner, the latter 1. SCHOOLS AND SCHOOL DISTRICTS w 14was an undisclosed principal in the trans- DISSOLUTION OF DISTRICTS-STATUTORY Proaction. The transaction between Bunch

VISIONS. Commission Company and Garner contain- 28) $S 16 and 17 (Kirby's Dig. $.7695), pro

Act Feb. 4, 1869 (Laws 1868-69, pp. 27, ed none of the elements of a resale to the vide relative to special school districts that the latter, for Bunch and Garner both testified general school laws when not inapplicable, and that the contract was turned over to Gar- so far as not inconsistent with and repugnant

to that act, shall apply to districts organized ner, and that he was to receive the butter thereunder. Act April 1, 1895, p. 82, § 1, proand pay for it in the name of Bunch Com- vides that the county court shall have power to mission Company for his own benefit. Sup

dissolve any school district and attach the ter

ritory thereof in whole or in part to an adjoinpose that the contract had been, by formal ing district or districts whenever a majority of written indorsement, transferred to Garner, the electors residing in such district shall petiand the subsequent delivery of butter made tion the court so to do. Held, that the court through Bunch Commission Company. Would has power to dissolve a special school district

as well as a common school district. not the commission company, under those cir

[Ed. Note.-For other cases, see Schools and cumstances, have been the agent of Gar- School Districts, Cent. Dig.' SS 88-91 ; Dec. ner? If that be true, it necessarily follows Dig. Om 44.] that under the facts of this case the doctrine 2. SCHOOLS AND SCHOOL DISTRICTS 44of liability of an undisclosed agency applies,

DISSOLUTION OF DISTRICTS - STATUTORY

PROVISIONS. for, as before stated, the effect of the trans

Under Act April 1, 1895, p. 82, § 1, the action was to assign the contract. Bunch / recital in a petition for the dissolution of a

*

school district of the districts to which the pe- tioners desired made of the territory of the titioners desire the territory of the dissolved district. district attached is not jurisdictional, as the statute requires no such designation, and this

[1] Prior to the Act of February 4, 1869 is one of the things to be taken into account (Laws 1868-69, p. 20), all school districts by the court in exercising its discretion as to were of the same class, that is, were common whether the district shall be dissolved.

school districts; but this act authorized the [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. 88'88-91; Dec. Dig. creation of special school districts in cities Ouw 44.]

and towns, and conferred upon those districts 3. SCHOOLS AND SCHOOL DISTRICTS OM 44 certain enlarged powers, which powers have DISSOLUTION OF DISTRICTS

STATUTORY been increased by subsequent legislation. PROVISIONS.

Sections 16 and 17 of this act, which are now Act April 1, 1895, p. 82, 81, merely confers section 7695 of Kirby's Digest, provided that: upon the county court discretionary authority to dissolve school districts, and does not re

"The provisions of the general school laws of quire it to dissolve a district upon the filing of the state which are now or may hereafter be in a proper petition.

force, when not inapplicable, and so far as the [Ed. Note.-For other cases, see Schools and same are not inconsistent with and repugnant to School Districts, Cent. Dig. 88'88-91; Dec. Dig. the provisions of this act, shall apply to disOm 44.]

tricts organized under this act. 4. SCHOOLS AND SCHOOL DISTRICTS O 44

Until the passage of the act approved April DISSOLUTION OF DISTRICTS – STATUTORY 1, 1895, entitled "An act to empower county PROVISIONS.

courts to dissolve school districts," there Under Act April 1, 1895, p. 82, § 1, the county court has no authority to dissolve a was not authority in the law for the dissoluschool district except on the filing of a petition tion of either special school districts or comconforming to the requirements of the statute. mon school districts, although there was pro

[Ed. Note. For other cases, see Schools and vision in the law for the enlargement of such School Districts, Cent. Dig. 88 88-91; Dec. Dig. special districts and for changes in the On 44.]

boundaries of common school districts. Sec5. SCHOOLS AND SCHOOL DISTRICTS ww44tion 1 of this act of 1895 provides that:

DISSOLUTION OF DISTRICTS — STATUTORY
PROVISIONS.

"The county courts of this state shall have Under Act April 1, 1895, p. 82, § 1, author- power to dissolve any school district now estabizing county courts to dissolve school districts, lished, or which may hereafter be established in and section 3, providing that whenever any its county and attach the territory thereof in district shall be abolished any indebtedness due whole or in part to an adjoining district or disby it shall be proportioned among the districts tricts, whenever a majority of the electors reto which its territory has been attached ac- siding in such district shall petition the court cording to the value of the territory each re- so to do." ceived, the discretion of the court in the as

signment

of the territory to other districts is. It is urged that the section quoted applies

the territory so distributed its pro rata part of nothing in the act which justifies this conthe indebtedness of the dissolved district.

struction. Its language is that the court [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig.' 88 88-91; Dec. shall have power to dissolve any school disDig. Omw 44.]

trict now established, and in the face of this Kirby, J., dissenting.

language we cannot say that the Legislature

intended this language to apply to districts Appeal from Circuit Court, Lee County ; of the one class and not to districts of the J. M. Jackson, Judge.

other. It is said in all the cases that the Certiorari proceeding by G. R. Robuck and legislative control over the creation and others against W. S. Hughes and others. boundaries of school districts is plenary, subFrom a judgment quashing an order of the ject only, however, to the limitation that 'county court dissolving a school district, de- such action shall not impair the contracts or fendants appeal. Reversed and remanded, obligations of such districts. Special School with directions.

Dist. No. 2. v. Special School Dist. of Texar

kana, 111 Ark. 379, 163 S. W. 1164; Womble H. F. Roleson, of Marianna, for appellants. Special School District v. Ellington, 112 Ark. Smith & McCulloch and Daggett & Daggett, 607, 164 S. W. 1130. all of Marianna, for appellees.

Section 3 of the act of 1895 provides for

the apportionment of the indebtedness of any SMITH, J. This case involves the right of district which may be dissolved. the county court to dissolve a special school such question is presented by the record in district, and questions the sufficiency of a this case. petition upon which that action was taken. [2-5] The judgment of the county court disThe county court of Lee county had estab- solving the special district was brought belished a special school district known as fore the circuit court on certiorari, where it special school district H, and this district was asked that said judgment be quashed bewas later dissolved upon the petition of a cause of the failure of the petition upon majority of the residents thereof praying its which the judgment was pronounced to desigdissolution. The petition, however, did not nate the districts to which the petitioners specify the apportionment which the peti- | desired the territory of the dissolved district

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