general appearance resembled one of the rob- less the value of the particular property bers who fled on their approach. We think this evidence was clearly competent for the purpose for which the court admitted it. While this evidence does show the commission of another crime than the one charged in the indictment it also tends to show that appellant participated in the commission of the crime charged in the indictment and refutes appellant's proof of an alibi. [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 motive, intent, or design; but proof is not to be excluded because it proves the commission of a different crime, if it also tends, in a material way, to prove the guilt of the crime charged. Davis and Thomas v. State, 174 S. W. 568. found in his possession exceeds $10." The only point raised on this appeal is an assignment of error which relates to the refusal of the court to give the instruction referred to above. The case is therefore ruled by the decision of this court in the recent case of Witt v. State, 177 S. W. 887, where we held directly contrary to the contention of appellant in this case. Judgment affirmed. BEATRICE CREAMERY CO. v. GARNER et al. (Nos. 93, 151.) (Supreme Court of Arkansas. July 5, 1915.) 1. PRINCIPAL AND AGENT TIES AS TO THIRD PERSONS 145-LIABILIUNDISCLOSED Where an agent makes a contract for an 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. WHITE V. STATE. (No. 127.) (Supreme Court of Arkansas. Sept. 27, 1915.) CRIMINAL LAW 511-LARCENY 65-EvIDENCE-POSSESSION OF PROPERTY STOLEN. Unexplained possession of a portion of property recently stolen may be considered in corroboration of testimony of accomplices in a prosecution for grand larceny, although the value of the property so found does not exceed $10. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. 511; Larceny, Cent. Dig. § 160; Dec. Dig. 65.] Appeal from Circuit Court, Miller County; Geo. R. Haynie, Judge. Anderson White was convicted of grand larceny, and he appeals. Affirmed. the party who dealt with the agent. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. cm 145.] 2. APPEAL AND ERROR 1009- REVIEW FINDINGS OF FACT. Findings of fact made by a chancellor will be upheld on appeal, unless they are against the clear preponderance of the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 1009.1 3. PRINCIPAL AND AGENT 140 - RIGHTS AND LIABILITIES OF THIRD PERSONS-UNDISCLOSED AGENCY. Where a commission company made a consive sale of butter shipped by it, the mere fact tract with a creamery company for the excluthat an employé of the commission company subsequently agreed to take over all consignments of butter to it from the creamery company 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. McCULLOCH, C. J. Appellant was convicted of the crime of grand larceny, under an indictment which charged the commission of the crime by stealing merchandise from freight cars in the possession of the St. Louis, Iron Mountain & Southern Railway Company. Two other men who were indicted for the same crime testified that they, together with appellant, burglarized the box cars and stole the property described in the indictment, of the value of more than $10. The testimony of the accomplices was corroborated by proof on the part of other witnesses of unexplained possession of certain articles of the property by the appellant shortly after the crime was committed, as related by the accomplices. There was proof tending to show that the articles in possession of appellant constituted a portion of the merchandise taken from the cars. Appellant's attorney asked the court to instruct the jury that unexplained possession of a portion of the recently stolen property could not be considered in corroboration "un pany, although the creamery company had no knowledge of the transaction. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 496, 498; Dec. Dig. mm 140.] 4. ACTION 57- CONSOLIDATION - CLAIMS ARISING OUT OF THE SAME TRANSACTION. The The employé of a commission house filed a bill of interpleader seeking to join a creamery company, and the receiver of the commission house, as defendants, to determine title to money obtained by complainant from the sale of butter, sold to him by the commission house, and claimed by the creamery company. creamery company filed an independent action against complainant to recover such amount, on the ground that plaintiff was an undisclosed principal of the commission house. Held, that act of May 11, 1905, the object of which is to the suits were properly consolidated, under the save repetition of evidence and unnecessary consumption. of time and costs in actions depending on the same evidence, or arising out of the same transaction. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 632-675; Dec. Dig. 57.] McCulloch, C. J., and Kirby, J., dissenting. Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor. Suit in interpleader by W. H. Garner and 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 and another, for a sum deposited in the registry of the court. From an order directing the clerk of the court to pay the fund to the trustee in bankruptcy of the Bunch Commission Company, the Beatrice Creamery Company appeals. Affirmed. L. E. Hinton and Comer & Clayton, all of Little Rock, for appellant. H. M. Trieber, of Little Rock, for appellees. HART, J. On November 23, 1914, W. H. Garner and the German National Bank of Little Rock, Ark., as trustee, filed a bill of interpleader in the Pulaski chancery court in which the Beatrice Creamery Company, a corporation organized and doing business under the laws of the state of Oklahoma, and J. S. Maloney, as receiver of the T. H. Bunch Commission Company, a domestic corporation, were asked to be made parties defendant. The bill of interpleader alleges that during the months of September and October, 1914, the Beatrice Creamery Company shipped and consigned to the T. H. Bunch Commission Company, at Little Rock, Ark., but ter of the value of $1,707.75; that upon the arrival of said butter at Little Rock it was turned over by the Bunch Commission Company to W. H. Garner; that Garner sold said butter of the value of $1,707.75 to retail merchants; that the proceeds were in his possession until October 16, 1914, when the same was paid over by him to the German National Bank of Little Rock, Ark., as trustee, to be held by it pending settlement of the ownership of said money; that both the Bunch Commission Company and the Beatrice Creamery Company were claiming said fund and demanding payment from the defendant Garner. The plaintiffs paid said money into the registry of the court and asked that the receiver of the Bunch Commission Company and the Beatrice Creamery Company be compelled to interplead for said fund. The receiver of the Bunch Commission Company entered his appearance to the suit, but no service of any kind was had upon the creamery company, and that company did not enter its appearance to the action. The Beatrice Creamery Company filed an independent action in the chancery court against W. H. Garner and W. A. Hicks, cashier of the German National Bank. The plaintiff alleges that the T. H. Bunch Commission Company entered into a contract with it whereby the creamery company agreed to sell and deliver to said commission company its output of butter which was shipped and delivered at Little Rock, Ark., and that said commission company was to have the exclusive right to sell the butter of the cream ter of the creamery company in Little Rock; that the creamery company since then has shipped butter to Little Rock of the contract value of $3,658.77, and that the same was accepted and received by the said Garner, but that he has failed and refused to pay for same. The complaint further alleges that Garner admitted liability for the purchase price of a part of said butter in the sum of $1,707.75, and that that amount had been paid by him to W. A. Hicks, as trustee, with the understanding that the latter should hold the same for the parties held to be entitled to it. The prayer of the complaint is that Hicks be enjoined from paying said sum of money so held by him to any one until the final hearing of this cause, and that said amount then be paid to said creamery company to be applied as a credit on the amount alleged to be due it by said Garner, and that it have judgment against Garner for the balance alleged to be due, namely, the sum of $1,951.02. On motion of W. H. Garner, the court ordered that that portion of the action instituted by the Beatrice Creamery Company against W. H. Garner and W. A. Hicks for $1,707.75 deposited in the registry of the court be consolidated with the interpleader suit. The court sustained a demurrer to the complaint of the creamery company asking a judgment against Garner for the sum of $1,951.02 and dismissed his complaint in that respect without prejudice to his bringing an action at law. At the hearing of the consolidated causes, the testimony of W. H. Garner and T. H. Bunch was taken before the court orally, and their testimony reduced to writing, and by order of the court filed as their depositions in the cause. It appears from their testimony that the T. H. Bunch Commission Comrany, before it became insolvent, did a large commission business in the city of Little Rock, that a part of its business was to sell butter, and that it had a contract with the Beatrice Creamery Company to take the entire output which is shipped to the city of Little Rock. The commission company had a standing order with the creamery company for its butter, and payment was usually made once a week, though at times longer intervals between payments occurred. W. H. Garner was in the employ of the Bunch Commission Company and had charge of the sales of butter made by it to the retail merchants of Little Rock. Subsequently the Bunch Commission Company made an agreement with Garner, whereby the latter was to take off its hands the butter consigned to it by the creamery company at the price that it paid the latter butter, and it made a contract with the creamery company for the exclusive sale of the butter which it shipped to Little Rock. It was in the habit of receiving daily consignments of butter from the creamery on open account. The commission company had a credit with the creamery company, and nothing was said or known by the creamery company of any other party to the transaction. Garner had no credit with the creamery company and was not known by it. He made his payments direct to the Bunch Commission Company, and the commission company sent its own checks to the creamery company in payment for the butter. At the time the contract between the Bunch Commission Com 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 company at the actual cost price, and Garner was thereafter to sell the butter to the retail trade of Little Rock at whatever price he desired. The Bunch Commission Company had a rating with the creamery company, but Garner was unknown to it. The commission company continued to receive consignments of butter from the creamery company under its contract with that company and made its remittances therefor about once a week as it had agreed to do. It turned the butter over to Garner at its actual cost, and Garner made settlements with the commission company once a week therefor. Prior to the institution of this action, the Bunch Commission Company became insolvent, and a receiv-pany and the Beatrice Creamery Company er was appointed to take charge of its assets. The court found that the T. H. Bunch Commission Company was not the agent of Garner in the purchase of the butter from the creamery company in the transaction involved in this suit, and that the transaction was one of sale on open account by the creamery company to the commission company and a resale on open account by the commission company to Garner, and Garner, having deposited the money in the registry of the court, was discharged from all liability to either the Bunch Commission Company or the Beatrice Creamery Company. The clerk of the court, with whom the money had been deposited, was directed to pay the same to the trustee in bankruptcy of the Bunch Commission Company. The Beatrice Creamery Company has appealed. [1] It is the well-settled law of this state that, where an agent makes a contract for an undisclosed principal, both the principal and the agent may be held liable at the election of the party who dealt with the agent. Mississippi Valley Construction Co. v. Chas. T. Abeles & Co., 87 Ark. 374, 112 S. W. 894; Bryant Lumber Co. v. Crist, 87 Ark. 434, 112 S. W. 965. This is conceded to be the law by both parties, and it is the contention of counsel for appellees that, where one is sought to hold one as undisclosed principal for goods bought, it is essential that the intermediate party through whom the goods were secured shall have been the agent of the principal sought to be held and not his vendor, and that, the court having found that the Bunch Commission Company was the vendor of the butter to Garner and not the agent of the latter in purchasing the same, its finding of fact in that respect should not be disturbed. [2, 3] It is the settled rule of this court that the findings of fact made by a chancellor will be upheld on appeal unless they are against the clear preponderance of the evidence. Tested by this rule, we think the findings of the chancellor should be upheld. was made, Garner was an employé of the commission company. No other contract was made by any one with the creamery company. The butter was consigned by the creamery company to the commission company under the original contract. Garner could in no sense be deemed an undisclosed principal when the original contract was made between the commission company and the creamery company. The mere fact that he subsequently agreed with the commission company to take over all consignments of butter to it from the creamery company at actual cost did not have the effect of making him an undisclosed principal. [4] The court did not err in the consolidation of the causes under the act of May 11, 1905. The object of this act providing for the consolidation of causes was to save a repetition of evidence and unnecessary consumption of time and costs in actions depending upon the same or substantially the same evidence or arising out of the same transaction. St. L., I. M. & S. R. Co. v. Raines, 90 Ark. 482, 119 S. W. 266; Little Rock Gas & Fuel Co. et al. v. Coppedge, 172 S. W. 885. In the case of St. L., I. M. & S. R. Co. v. Broomfield, 83 Ark. 288, 104 S. W. 133, the court said that the act leaves to the discretion of the trial court the consolidation of actions of like nature relative to the same questions pending before the court without reference to the identity of the parties and without restriction as to the causes of action which may be joined in the same suit. It follows that the decree will be affirmed. McCULLOCH, C. J. (dissenting). The undisputed evidence in this case is to the effect that Bunch Commission Company concluded to go out of the business of selling butter to retail men in Little Rock, and turned their contracts with the Beatrice Creamery Company over to Garner to receive the butter, to pay for it, and sell it. There is no conflict whatever in the evidence, and it is not sufficient to warrant the inference that there was Company to Garner. Garner testified that | Commission Company, by permitting the conBunch Commission Company decided to go out of the city business, and, as a matter of accommodation to him (Garner), turned the contract with the Beatrice Creamery Company over to him, and that he "ran the business, merely using Bunch's name for the purpose of getting the butter." The testimony of T. H. Bunch was to the same effect. His statement is as follows: "It was simply a favor we were trying to extend Mr. Garner for past services; he had been faithful to us for many years. We turned the contract we had with the Creamery Company over to Mr. Garner and continued to let him order the butter in our name simply as a matter of accommodation to him." They both testified that the sole reason for leaving the contract in the name of the Bunch Commission Company was that they were afraid that if they undertook to get a new contract in Garner's name some other dealer might secure the contract with the creamery company, and it was decided that the best way was to leave the contract in the name of the Bunch Commission Company. There is no doubt about the inference which can be drawn from the statements of those two witnesses, who were the only ones who testified on the subject. The effect of the transaction was to make it an assignment of the contract by Bunch Commission Company to Garner, and the commission company became the agent of Garner in performing the contract for the purchase of the butter. The fact that no such relation existed at the time the original contract was made with the creamery company does not alter the law applicable to the facts of the case. The contract was executory, and the sales thereunder were consummated only when deliveries of butter were made in installments from time to time. No sale was complete until there was a delivery of the butter. Therefore, when the installments were delivered through Bunch Commission Company to Garner, the latter was an undisclosed principal in the transaction. The transaction between Bunch Commission Company and Garner contained none of the elements of a resale to the latter, for Bunch and Garner both testified that the contract was turned over to Garner, and that he was to receive the butter and pay for it in the name of Bunch Commission Company for his own benefit. Suppose that the contract had been, by formal written indorsement, transferred to Garner, and the subsequent delivery of butter made through Bunch Commission Company. Would not the commission company, under those circumstances, have been the agent of Garner? If that be true, it necessarily follows that under the facts of this case the doctrine of liability of an undisclosed agency applies, for, as before stated, the effect of the transaction was to assign the contract. Bunch tinued use of its name in receiving deliveries of butter under the contract without disclosing Garner's connection with the transaction, rendered itself liable to the creamery company for the price of the butter so received, but Garner is liable too, for, according to the true import of the transaction, he was the real purchaser of the butter, and the debt for the price was in fact his debt, and not that of the commission company. Garner is willing to pay for the butter, and has in fact paid the amount into the registry of the court. Bunch Commission Company has no just claim to the amount so paid, and, according to settled principles of law, it should be recovered by the creamery company and not by the general creditors of the Bunch Commission Company. The justice of that view is made plain by the statement in one of the text-books on the law of agency, giving a reason for the rule of liability of an undisclosed principal: settle with some one-being liable to the agent, "Inasmuch as the principal must ordinarily perhaps upon an express contract of indemnity or reimbursement, or upon an implied one wherever the nondisclosure of the principal and the pledging of the agent's own credit do not constitute such a violation of duty as to disentitle the agent to such relief-it seems to be a convenient 'short-cut,' if nothing more, to give the instead of requiring him to pursue the agent third part a direct claim upon the principal who will then pursue the principal. Where this is attempted before the principal has paid or settled with agent and this seems to have been the typical case in the first instance-nothing but more or less technical rules of procedure would seem to stand in the way of it." 2 Mechem on Agency (2d Ed.) § 1729. KIRBY, J., concurs in the views here announced. HUGHES et al. v. ROBUCK et al. (No. 101.) (Supreme Court of Arkansas. July 5, 1915.) 1. SCHOOLS AND SCHOOL DISTRICTS 44DISSOLUTION OF DISTRICTS-STATUTORY PROVISIONS. Act Feb. 4, 1869 (Laws 1868-69, pp. 27, 28) §§ 16 and 17 (Kirby's Dig. § 7695), provide relative to special school districts that the general school laws when not inapplicable, and so far as not inconsistent with and repugnant to that act, shall apply to districts organized thereunder. Act April 1, 1895, p. 82, § 1, provides that the county court shall have power to dissolve any school district and attach the territory thereof in whole or in part to an adjoining district or districts whenever a majority of the electors residing in such district shall petition the court so to do. Held, that the court as well as a common school district. has power to dissolve a special school district [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 88-91; Dec. Dig. 44.] 2. SCHOOLS AND SCHOOL DISTRICTS 44DISSOLUTION OF DISTRICTS STATUTORY PROVISIONS. Under Act April 1, 1895, p. 82, § 1, the recital in a petition for the dissolution of a school district of the districts to which the petitioners desire the territory of the dissolved district attached is not jurisdictional, as the statute requires no such designation, and this is one of the things to be taken into account by the court in exercising its discretion as to whether the district shall be dissolved. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 88-91; Dec. Dig. m44.] 3. SCHOOLS AND SCHOOL DISTRICTS 44 DISTRICTS STATUTORY DISSOLUTION Act April 1, 1895, p. 82, § 1, merely confers upon the county court discretionary authority to dissolve school districts, and does not require it to dissolve a district upon the filing of a proper petition. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 88-91; Dec. Dig. 44.] 4. SCHOOLS AND SCHOOL DISTRICTS 44-DISSOLUTION OF DISTRICTS STATUTORY PROVISIONS. Under Act April 1, 1895, p. 82, § 1, the county court has no authority to dissolve a school district except on the filing of a petition conforming to the requirements of the statute. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 88-91; Dec. Dig. mm 44.] tioners desired made of the territory of the district. [1] Prior to the Act of February 4, 1869 (Laws 1868-69, p. 20), all school districts were of the same class, that is, were common school districts; but this act authorized the creation of special school districts in cities and towns, and conferred upon those districts certain enlarged powers, which powers have been increased by subsequent legislation. Sections 16 and 17 of this act, which are now section 7695 of Kirby's Digest, provided that: "The provisions of the general school laws of the state which are now or may hereafter be in force, when not inapplicable, and so far as the same are not inconsistent with and repugnant to the provisions of this act, shall apply to districts organized under this act. Until the passage of the act approved April 1, 1895, entitled "An act to empower county courts to dissolve school districts," there was not authority in the law for the dissolution of either special school districts or common school districts, although there was provision in the law for the enlargement of such special districts and for changes in the boundaries of common school districts. Sec 5. SCHOOLS AND SCHOOL DISTRICTS 44-tion 1 of this act of 1895 provides that: DISSOLUTION OF DISTRICTS - STATUTORY PROVISIONS. Under Act April 1, 1895, p. 82, § 1, authorizing county courts to dissolve school districts, and section 3, providing that whenever any district shall be abolished any indebtedness due by it shall be proportioned among the districts to which its territory has been attached according to the value of the territory each received, the discretion of the court in the assignment of the territory to other districts is limited only by the duty of adjudging against the territory so distributed its pro rata part of the indebtedness of the dissolved district. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 88-91; Dec. Dig. 44.] Kirby, J., dissenting. "The county courts of this state shall have power to dissolve any school district now established, or which may hereafter be established in its county and attach the territory thereof in whole or in part to an adjoining district or districts, whenever a majority of the electors residing in such district shall petition the court so to do." It is urged that the section quoted applies only to common school districts. But we see nothing in the act which justifies this construction. Its language is that the court shall have power to dissolve any school district now established, and in the face of this 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. Certiorari proceeding by G. R. Robuck and others against W. S. Hughes and others. From a judgment quashing an order of the 'county court dissolving a school district, defendants appeal. Reversed and remanded, with directions. H. F. Roleson, of Marianna, for appellants. Smith & McCulloch and Daggett & Daggett, all of Marianna, for appellees. SMITH, J. This case involves the right of the county court to dissolve a special school district, and questions the sufficiency of a petition upon which that action was taken. The county court of Lee county had established a special school district known as special school district H, and this district was later dissolved upon the petition of a majority of the residents thereof praying its dissolution. The petition, however, did not specify the apportionment which the peti other. It is said in all the cases that the legislative control over the creation and boundaries of school districts is plenary, subject only, however, to the limitation that such action shall not impair the contracts or obligations of such districts. Special School Dist. No. 2. v. Special School Dist. of Texarkana, 111 Ark. 379, 163 S. W. 1164; Womble Special School District v. Ellington, 112 Ark. 607, 164 S. W. 1130. Section 3 of the act of 1895 provides for the apportionment of the indebtedness of any district which may be dissolved. But no such question is presented by the record in this case. [2-5] The judgment of the county court dissolving the special district was brought before the circuit court on certiorari, where it was asked that said judgment be quashed because of the failure of the petition upon which the judgment was pronounced to designate the districts to which the petitioners desired the territory of the dissolved district |