Co. v. Foster, 176 S. W. 682. Failure to give notice in accordance with this provision of the contract of carriage, having been specially pleaded and relied upon as a defense, cast the burden of proof upon the shipper to show either a compliance with it or a waiver of the requirement by the carrier in order to a recovery. St. L. & S. F. R. Co. v. Keller, 90 Ark. 313, 119 S. W. 254; St. L. & S. F. R. Co. v. Pearce, 82 Ark. 357, 101 S. W. 760, 118 Am. St. Rep. 75, 12 Ann. Cas. 125; Cumbie v. St. L., I. M. & S. R. Co., 105 Ark. 406 and 415, 151 S. W. 240. Such a stipulation has been held to be one for the protection of the carrier, compliance with which can be waived by it. 6 Cyc. 509; St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154, 115 S. W. 933; St. L., I. M. & S. R. Co. v. Shepard, 168 S. W. 137. ment, and all arrived at destination more or | Ark. 436, 142 S. W. 826; C., R. I. & P. Ry. less damaged, as a result of the unusual delay in transit and the failure to properly refrigerate. The testimony also tended to show the amount of such damage. Laser stated that the peaches in the different cars had been sold f. o. b. the point of shipment at a certain price per bushel or crate, except certain cars designated by him to be sold on commission, the amount that was realized on the sale of the shipment at the point of destination, the amount of the freight, icing, and other charges claimed as damages. There was other testimony relative to some of these amounts. He was allowed to state, over appellant's objection, that he knew the market price of the peaches in Boston, the destination to which three of the shipments were consigned, on the date of the sale there, from having read the market quotations and price lists, although he had no such lists from which to testify. The court refused to declare the law to be that the burden of proof was upon plaintiff to show that a written notice of claim for damages was given within four months to the agent of the defendant at the point of origin of shipment, and also that such a provision requiring written notice of the claim for damages was valid, and, unless given, would defeat a recovery. The court also refused to find, as a fact, that the railroad had exercised all necessary diligence in supplying refrigerator cars for the shipment of peaches from the state in the year 1912; that on account of the unusual demand for such cars during the peach shipping season it was forced to substitute what it called "meat cars," as they were the only ones available, to supply the demand; and that the damage to the peaches shipped therein were caused from the bunkers not being sufficiently large to hold enough ice to keep them properly refrigerated. The court found in favor of plaintiff on 26 of the 27 counts of the complaint for damages to that number of cars of peaches, designating the amount on each count, and rendered judgment accordingly, from which this appeal is prosecuted. Thos. B. Pryor, of Ft. Smith, for appellant. W. Covington, of Ft. Smith, and Sellers & Sellers, of Morrilton, for appellee. KIRBY, J. (after stating the facts as above). [1, 2] Appellant's first contention is that the court erred in not finding in its favor because no claim in writing for damages was made to the carrier within four months after the delivery of the shipment, as required by the bills of lading. A stipulation of like kind in a bill of lading or contract of carriage has been held reasonable and valid, and the failure of the shipper to present his claim in writing within the time specified conclusive of his right to recover. [3] It is true that no claim in writing was made to the carrier either at the point of origin or delivery of shipment within the time specified. But it is also true that a written claim for damages upon each of the shipments made, except three cars, was presented to the general freight agent of the railway company in St. Louis by appellee company, whose manager talked with the agent upon the adjustment and settlement of the claim for damages upon each of said cars, and also with the agent, Mr. Wyler, of the American Refrigerator Transit Company, to whom he was referred by appellant's agent relative thereto. This witness stated the. claims for each of the said cars, except three, were made out in writing and mailed to Mr. Walton, the general freight claim agent of the railway company at St. Louis, and that the receipt of claims had been acknowledged by said agent upon postal cards, introduced in evidence by the witness, and he also stated that he had personally discussed with and negotiated for the settlement of each of the claims with said general freight claim agent in St. Louis, having all of them in writing with him and presenting them for the purpose of settlement; that neither of the agents at any time objected to the investigation or settlement of any of the claims because they were not presented in different form or to the agent at the point of shipment or destination. The freight claim agent of appellant company did not testify, and Mr. Wyler, the agent of the American Refrigerator Transit Company stated that the claims in writing for damages upon 21 of the cars shipped had been presented to him by the direction of appellant company for investigation and adjustment. Thus the claims were presented in writing to the general freight agent of appellant company, and also by his direction to the agent of the American Refrigerator Transit Company for investigation, and negotiations between appellee and such agents these claims for damages were pending for some time thereafter without any objection made upon the part of appellant that such claims were defective or made out of time, and appellant company waived its right to insist upon compliance with the terms of the stipulation relating thereto upon all the cars for which such claims for damages were made within the four months allowed therefor. [4] Second. The court declared the law, as requested by appellant, that the amount of damage or loss for which it was liable should be computed on the basis of the value of the property shipped at the time and place of shipment upon the bona fide invoice price to consignee, including the freight charges, if prepaid, in accordance with the terms of the bill of lading. And the manager of appellee company stated that his estimate of damages was made upon the basis of the invoice price on the peaches shipped f. o. b. cars at the point of shipment, except the cars sold on consignment. He also testified relative thereto, and there was other testimony tending to show the various other items of expense claimed as damages. It is next contended that the court erred in permitting the manager of the appellee company to testify to the market price of peaches in Boston at the time the three cars in question should have been delivered there from his knowledge based upon market reports and quotations not produced in evidence. This witness stated that he kept informed of the market price of peaches in Boston during the time the shipment should have arrived, from the market quotations and reports published in the newspapers and otherwise, and that such value was as stated by him. In St. L. & S. F. Ry. Co. v. Pearce, 82 Ark. 358, 101 S. W. 760, 118 Am. St. Rep. 75, 12 Ann. Cas. 125, the court said: "Standard price lists and market reports, shown to be in general circulation and relied on by the commercial world and by those engaged in the trade, are admissible as evidence of market values of articles of trade." [petent for him to testify to the market value of the article in a particular market, as he did, without producing the published reports and quotations in support of his statement; the fact that his statement was based upon such knowledge without producing the reports, price lists, and quotations going rather to the credibility of the testimony than to its competency. [5] This testimony related only to damages claimed upon the cars shipped to Boston to be sold upon commission there, and, of course, it was competent to prove the damages upon all such shipments as had not been made upon orders and an agreed invoice price; the rule for computation of damages for delay and injury in transportation of goods being the difference between the market price of the goods at the time and place when and where they should have been delivered and their value when and in the condition in which they were delivered. St. L., 1. M. & S. R. Co. v. Tilby, 174 S. W. 1167. [6] It is next insisted that the court erred in not finding, as a fact, that the railway company was not able to furnish proper cars for the shipment of peaches on account of the unusual and unprecedented demand for refrigerator cars for the crop of 1912. There was testimony tending to show that only 472 cars of peaches were shipped from the state in the year 1907, the largest shipment in any one year until 1912, during which year there were shipped 3,194 cars, or an increase of almost 600 per cent. Two witnesses testified that every possible effort, was made by the American Refrigerator Transit Company, which owned 3,700 cars, to furnish and provide refrigerator cars for carrying the peach crop of 1912 to market. They used all the cars they had and all they could procure from other companies in furnishing the carriers of the state cars for transportation of the peaches. One of these witnesses stated that they began preparations early in 1912 for estimating the probable crop and supplying cars for the transportation of it, and that it was impossible to have refrigerator cars manufactured in time to remove the crop of 1912 after its magnitude was indicated in the early spring. One witness testified, however, that there was no such shortage of refrigerator cars as prevented the supply of the requisite number for carrying to market the peach crop of the state of Arkansas, and it was shown that the crops of Texas requiring refrigerator cars for transportation had been moved before it had been necessary to begin the shipment of the Arkansas peaches, and that sufficient cars could have been had for the purpose upon reasonable and proper effort made to secure them. The witness here did not produce the papers and journals containing the published market quotations and reports, but he testified that he kept up with the market, that he examined and was familiar with the reports and knew the market value to be as stated, because of the information derived from such published reports. We do not think this testimony was incompetent as being hearsay, for the market value is indicated by the prices received and paid for articles of commerce, by those dealing therein, and a witness who was present and saw the general public sales made at the prices offered and accepted could testify thereto in establishing the market value of that article or com- [7] Appellant's requested declaration of the modity at the time and place without produc-law was erroneous, even if the testimony had ing the bids and acceptances or having pub- warranted the finding of fact requested. reasonable facilities of transportation to all | No. 9. It will suffice to say that the testishippers at every station who in the regular mony has been carefully read and considered and expected course of business offer their goods for transportation, it is not required to prepare in advance for an unprecedented and unexpected rush of business, and therefore will be excused for delay in shipping or even in receiving goods for shipment until such emergency can in the usual and regular course of business be removed. St. L. S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 362, 92 S. W. 531. There is a mass of testimony in the record relating to the claims for damages upon 27 different cars of peaches shipped, and appellant claims to have made a fair and as full an abstract as practicable of the testimony relating to the claim of damages upon each car. [8] Appellee claims generally that the abstract is not full and complete, but only challenges it specifically relative to count No. 9 of the complaint, saying in its brief: "We take the testimony as to this car at random, it not being practical, as counsel says, to go into analysis of the testimony as applied to each car. ** * We not only call attention to the testimony relating to this particular car as a sample of the testimony with reference to other cars, but also to the manner in which the testimony has been abstracted by counsel for appellant." Necessarily the court cannot be expected to explore the record to ascertain whether appellant's abstract of the testimony relating to the claim of damages for each car under each count of the complaint is fair and sufficient when appellee's counsel have not found it practicable to do so, and do not object to such abstract specially except as to count It is sufficient to support the court's findings as to the amount of damages for which judgment was rendered under counts Nos. 3, 4, 6, 7, 8, 9, 10, 12, 13, and 17; on counts Nos. 1 for $371.45; 2, $363.01; 14, $270.98; 15, $346.34; 18, $190.17; 19, $225.45; and 26, $198.95. The testimony is not sufficient to support a recovery under counts Nos. 5, 11, 16, and 22. There was no acknowledgment of receipt of a claim for damages upon the cars set out in counts Nos. 20, 21, 24, 25, and 27 within the time required, and the testimony does not definitely show that a claim for damages was made in any manner upon these cars and negotiations entered into for their settlement before the expiration of the four months stipulated in the bill of lading in which the claim was required to be made. It is true the manager of appellee company or his father for him claimed to have talked with the railroad claim agents relative to the claims for damages on these cars, but the testimony does not show that such conversations occurred before the expiration of the time, and the burden of proof to show waiver, being upon appellant, was not sustained. The judgment must therefore be modified, and, after deducting the amounts from the trial court's findings under the different counts of the complaint, as indicated, and the amounts not allowed under the other counts, as stated, will be entered here for the sum of $4,281.87, with interest as allowed by the judgment of the court below, with the costs of appeal adjudged against appellee. It is so ordered. HOLTZCLAW et al. v. WELLS. (Court of Appeals of Kentucky. Oct. 22, 1915.) 1. TRUSTS 110-AGREEMENT TO PURCHASE FOR ANOTHER "PAROL CONSTRUCTIVE TRUST"-SUFFICIENCY OF EVIDENCE. In an action for the recovery of land, on the ground that defendant agreed to buy it for plaintiff's ancestor and had fraudulently taken title in his own name and refused to convey evidence held insufficient to establish a "parol constructive trust." which arises when one obtains the legal title to property in violation of some express or implied duty to the one who is equitably entitled thereto, and holds it in hostility to the other's beneficial rights. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 160; Dec. Dig. 110.] 2. TRUSTS 110 PAROL CONSTRUCTIVE TRUST-WEIGHT OF EVIDENCE. To establish a parol constructive trust, the proof must be such as to leave no rational doubt as to the truth of the necessary facts, and evidence must be strong and convincing against documents showing the legal title to be in some one else. [Ed. Note. For other cases, see Trusts, Cent. Dig. 160; Dec. Dig. 110.] On purchase price of the land and its interest, paid to him. On the same day Adams executed an order upon the master commissioner Appeal from Circuit Court, Lincoln County. of the court, directing him to pay to M. C. Suit by B. D. Holtzclaw, administrator, | Saufley, who seems to have been his attorand others, against J. T. Wells. Judgment | ney, $7.50, out of any fund in the hands of for defendant, dismissing the petition, and plaintiffs appeal. Affirmed. See, also, 153 Ky. 768, 156 S. W. 407. R. H. Tomlinson, of Lancaster, for appellants. Geo. D. Florence and P. M. McRoberts, both of Stanford, for appellee. HURT, J. Overton Adams, an unmarried man, resided in Lincoln county, Ky., on a farm of 1022 acres, of which he was the owner of an undivided one-third interest. A sister resided with him, and previous to his death, which occurred on the 23d day of December, 1905, his sister died. The appellee, J. T. Wells, for several years previous to the death of Adams, also resided with him, but exactly upon what terms is not shown. In 1904, Ann Gover, who was the owner of an undivided one-third interest in the farm upon which Adams lived, instituted a suit against Adams and Charles Singleton, the other joint owner, for a sale of the land and a division of its proceeds. The court adjudged that Adams, Singleton, and Gover were each an owner of an undivided one-third of the land and adjudged that it be sold. The sale was made on the 8th day of August, 1904, when the appellee, J. T. Wells, became the purchaser, at the price of $300, and executed bond for the purchase price with J. M. Singleton as his surety. The sale was duly reported, when Ann Gover filed exceptions to the sale, and thereafter additional exceptions, which the court finally heard and overruled on the 8th day of March, 1905. On the same day the appellee gave his check to the master commissioner, on a banking institution at Crab Orchard, for the amount of $310, which was the the master commissioner coming to Adams, which had arisen from a sale of the land, and this order was accepted by the master commissioner and the money paid. The court sustained his motion to the extent of setting aside the order directing the payment of one-third of the proceeds of the sale to Singleton, and ordered payment of it withheld for the further adjudication of the court. Thereafter, on the 30th day of June, 1905, Adams filed an answer and cross-petition in the case, in which he set up the same facts as in his affidavit, showing his right to Singleton's portion of the proceeds of the sale of the land, and asked that it be paid to him. Adams died intestate, and thereafter, on the 11th day of May, 1911, his administrator and 32 of his collateral heirs instituted this suit against the appellee, Wells. The allegations of the pleadings in this case are fully set out in the opinion upon a former appeal of this case, which may be found in 153 Ky. 768, 156 S. W. 407. Suffice it to say, however, that the plaintiffs below, who are the appellants here, alleged in substance that Overton Adams, their ancestor, was the owner of an undivided two-thirds interest, and in addition one-sixth of the land which was sold in the action of Gover v. Adams et al., and that he desired to become the purchaser of it at the decretal sale, but, upon the day upon which the sale was made, that he was sick and unable to attend the sale, but, for the purpose of purchasing the land at the sale, he made the appellee, Wells, his agent to attend the sale and buy the land for him, and also procured a surety in the bond which would have to be executed for the sale price, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and that Wells fraudulently purchased the | call him "My Boy"; that, two or three days land for himself, and caused himself to be previous to the decretal sale, Adams, acreported as the purchaser, and procured a companied by Wells, went to a neighbor, to confirmation of the sale and execution to whom Adams said that the land was to be him of a deed, all of which facts were un- sold in order to get Ann Gover's interest out known to Adams, who was relying upon of it, and that he was unwell and could not Wells to take care of his interest in the mat- go to the sale, and he wanted the neighbor ter, as directed, and who did not learn until to go and assist Wells in buying in the land. after the sale was confirmed, the real truth The neighbor inquired how much he should as to the actions of Wells, and that he had pay for it. Adams answered that Tommy offered to pay to Wells the amount that he (meaning Wells) would attend to that, and had paid upon the bond for the purchase that he just wanted the neighbor to go on price of the land, which Adams was then the bond for the purchase money, which the able to do, and demanded of Wells that he neighbor promised to do and did go and atconvey the land to him, but that Wells had tend the sale, where Wells was the only fraudulently refused to do so, and had con- bidder, at the sum of $300, and the land tinued to hold the land and its title in fraud was sold to him, and that the witness beof the rights of Adams until his death, and came Wells' surety upon the bond. It was since that time in fraud of the rights of the proven by another witness that on the day appellants, who were his legal heirs and of the sale, but after it had taken place, that succeeded to their ancestor's rights per- Wells jokingly said that he had bought the taining to the land, and prayed that the land, and that he was going home and tell court adjudge that the transactions amount- Adams that he had bought it for himself. ed to a constructive trust, and that Wells By another witness it was proven that, some was holding the land as trustee for appel- time after the sale, Adams requested him lants, and that he be required to convey the to see Wells, and see if any arrangements land to them. could be made about the land. Wells and the witness went to Adams, and Adams and Wells agreed that they would survey off a part of the land, and that Adams could live there and keep his property there, as long as he lived, but at his death that portion of the land should revert to Wells. Another witness testified that, about the middle of the summer of 1905, he went with Adams to Lancaster, to which place Adams went for the purpose of consulting a lawyer about bringing a suit for the land. The appellee, by answer and amended answers, controverted all the allegations of the petition, and in addition pleaded that his purchase of the land and his procuring a deed, and the payment of the purchase money by him were facts well known to the decedent at all times, and that decedent approved of same and filed no exceptions to the report of sale, and also set out the fact of the decedent filing the affidavit and motion on the 9th day of March, after the confirmation of the sale and the payment of the purchase money, and the filing of his answer and cross-petition on the 30th day of June, thereafter, and relied upon same as an estoppel to the plaintiffs' cause of action set up in their petition, and further pleaded that since the death of the decedent the appellants had, by an order of court, procured the payment to their attorney, as a portion of his fee in the case, the sum of $100, which he alleged was a part of the proceeds of the sale of the land which belonged to the decedent, and relied upon such fact as a further estoppel to the appellants' cause of action. The affirmative allegations in the answer and amended answers were duly controverted by replies, and the cause coming on to be heard upon the pleadings and proof, the court adjudged that the petition of the appellants be dismissed, to which they excepted, and prayed an appeal to this court. Proof was offered by the appellants tending to prove that the land was worth from $700 to $1,000; that Adams was a man of good sense, able to read and write, and was near 70 years of age; that Wells had lived in the same house with him for several years previous to the sale, and that Adams seemed to have a great affection for him, For the appellee it was proven that he resided in the same house with Adams at the time of the sale and continued to live in the same house until April or May, 1905, when he married, and thereafter lived in another house upon the same land; that shortly after the sale Wells went to work upon the land, clearing it up of its brush, erecting new fencing, cutting down trees, which he caused to be sawed into lumber, and which he brought to the land and used in improvements upon it. By another witness it was proven that in January, 1905, she went to Adams for the purpose of renting a house which was on the land; that Adams said to her that he had given the land to Wells, and that she would have to see him. She did so, and rented the house from Wells, and the rent was paid to Wells by work on the farm. Another witness stated that in March or April, 1905, he accompanied Adams to Stanford, and while there that Adams said that he had gone to the clerk's office to see about a deed between him and Wells, and that he had found it, and that it was all right. By four different witnesses it was proven that he said to one of them, in February, 1905, that Wells was to have everything that he had, and that he did not want |