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under the new contract justified the refusal of and the same is hereby ratified, and in all further performance by the company, since un- things declared to be binding, and the said der the provision for security the defendant was entitled to the continuation of the bond as first bond of the said Haynes is declared to be executed, and had the right to require further to the said company acceptable, and the said security upon such refusal.

Haynes will not be required to make any new [Ed. Note. For other cases, see Contracts, Cent. Dig. $$ 1409–1443; Dec. Dig. Om 303.]

or additional bond, or give any additional

bondsmen during the life of the said conAppeal from Circuit Court, Randolph tract; and the said company agree that they County; J. B. Baker, Judge.

will not permit one Glasco, who has hereAction by T. C. Haynes against the J. R. tofore had a contract for the said territory, Watkins Medical Company. From a judgment to have any contract for any portion of said for plaintiff, defendant appeals. Reversed, territory during the life of the said Haynes and cause dismissed.

contract, nor to permit any one else to have This is a suit for damages for breach of contract for the said territory, nor any porthe contract entered into between the par- the said Haynes contract.”

tion thereof during such unexpired term of ties thereto, for the alleged refusal of the

The appellee testified about the making of appellant company to furnish medicines to be sold by the appellee in the prescribed ter- the contract, the execution of the bond, with ritory, at the price designated and in ac- T. W. Campbell and C. A. Going as sureties, cordance with the provisions of the contract. which was accepted by the company, the On February 27, 1914, the parties entered breach of the contract, the suit for damages into a written contract, giving the appellee and compromise thereof, and the stipulation the exclusive right to sell the medicines and for the further performance of the contract. manufactured articles of the appellant com

He stated, also, that the company thereafter pany, in a designated portion of Randolph refused to send medicines and goods ordered

, county, agreeing to fill all orders of appellee in accordance with the contract, and read for medicines, etc. In March, the medical their letter of May 16, 1914, as follows: company attempted to cancel said contract ship the sample case to you at Pocahontas, Ark.

"We have yours of the 14th, asking that we and assigned the territory to another person. We are, however, unable to comply with your Appellee thereupon brought suit for breach request, as we are in receipt of a communicaof the contract, which was compromised and tion from our Winona office, to the effect that dismissed upon the payment by the medical one of your bondsmen has withdrawn from your

contract. Of course, until that matter has been eompany of the sum of $275, “and the fur- straightened out, we will be unable to make you ther promise,” as alleged in the complaint, any further shipments.” “on the part of appellant, that the contract He replied to this letter on March 23d, as that had been entered into between them on follows: the 27th of February, 1914, should again be

I am in receipt of a letter from your Memcome effective, and that appellant would not phis office, stating that you will not ship me require of appellee any other bond or bonds- any sample case until things were straightened men, and that appellee was to have said out, saying that one of my bondsmen had gone

back on me. Now it was distinctly agreed beterritory mentioned in said original contract, tween us that I was not to be required to make all of which was to be effective and binding any further or additional bond, nor give any adon the parties from the said 28th day of ditional bondsmen, during the life of my year's April, 1914, to the 1st of March, 1915.” And plying with your contract in this particular. I it also alleged that appellant notified ap- ordered a sample case from you on the 29th day pellee that one of his bondsmen had with of April, and cannot, of course, go to work drawn from the bond, and by reason thereof without the case. . So I am waiting for you to it could ship him no further goods until he are going to do about it.”

Please let me know what you

ship this to me. executed a new bond, which he refused to

He admitted receiving their letter of May do, and thereupon appellant refused to ship 21st, informing him of the receipt of a letter him any more goods or merchandise in ac- from his surety, C. A. Going, declining to be cordance with the contract, which action further bound by the bond executed, as the constituted a breach thereof, for which dam-contract later entered into between the mediages were prayed. Appellee answered, denying the allegations of the complaint rela-ecuted without his knowledge or consent, and

cal company and Haynes was a new one, extive to breach of the contract.

The agreement of compromise was reduced stating he would not be bound by anything to writing, and stipulates, after reciting the further that should take place between the making of the first contract and the giving

This letter also company and Haynes.

states: of the bond required by it, with certain sureties, naming them, the breach thereof and be further bound under the contract he executed

"You will observe that Mr. Going refuses to the amount paid in the compromise of the as surety for you, which you will appreciate suit therefor; "and as a further condition and makes it necessary for you to arrange for a consideration of said compromise it is agreed new contract before we can fill any more orders.

Mr. Going's notice would release him from any that said contract entered into by and be- obligation to pay for any goods furnished subtween said parties on February 27, 1914, be sequent to the time it was received by us. Please let us hear from you promptly as to what to be sold, the giving of the bond "in supyou wish to do in the matter."

port of said contract," with the sureties, He testified, further, that he refused to naming them, etc. furnish any additional bondsmen; that he The stipulation in effect provided for a was unable to do any business whatever un- continuance of the first contract, under the der the contract, because the company refus- terms of the bond by it required and executed to send him the medicines ordered and ed, as though there had been no breach the goods to be sold in accordance with its thereof, nor compromise of suit for damages. terms; that he was ready at all times to It was never contemplated that the contract carry out the contract on his part, but was should be made and performed, except in prevented by the company from doing so. He accordance with its terms and under the obadmitted that Mr. Going, his surety, had ligation of the bond required to be, and come to him and told him that he was re- which was, executed by appellee, with the leased from the bond. The remainder of his two sureties. There was no agreement to testimony relates to his probable profits, and furnish any medicines or manufactured arthere was other testimony relative thereto. ticles without bond, and the second writing

The court instructed the jury, refusing to merely declares that the old contract shall give appellant's instruction numbered 3, as be continued with the bond as already exrequested, as follows, and struck out the last ecuted. It was admitted that one of the half thereof, over its objection:

sureties afterwards claimed to be released "You are further instructed that in the con because the compromise agreement was extract sued on in this action, the words, 'said ecuted without his knowledge or consent, Haynes will not be required to make any new or additional bond, or give any additional bonds and notified the medical company that he men during the life of this contract,' refer to would no longer be bound upon the bond. the bond as then existing, with all sureties on it immediately informed appellee of this same intact.

"Therefore, should you find from the evidence fact, and requested that he should furnish in this case that, subsequently to the execution another surety, which he refused to do, of the contract sued on, one of the sureties on claiming that it had no right to demand any said bond withdrew as such, then and in that other bond or surety under the terms of the event the defendant would have a right quire plaintiff to execute a new bond,

and upon compromise agreement. Of course, if appelthe failure of the plaintiff to do so, the defend lee's contention had been correct, he was enant would have a right to refuse to ship goods titled to have the company continue to supto plaintiff until such new bond had been ex- ply him with medicines and manufactured ecuted.”

articles without the giving of other bond or The court also told the jury, if they should surety; but, as already said, the stipulation find that appellee agreed with the medical of the compromise agreement is not suscepcompany “not to require a new bond ortible to any such construction, and his conbondsmen during the life of the contract tention cannot be sustained. sued upon in this case, that the Medical

It was not contemplated that the mediCompany would be estopped from pleading cines and manufactured articles should be that one of the sureties had withdrawn from furnished him without the bond given rethe bond.”

quired by the terms of the contract, and S. A. D. Eaton, of Pocahontas, for appel- while the medical company was willing to lant. T. W. Campbell, of Pocahontas, for continue to perform the contract and rely appellee.

upon the bond as first executed, and not to

demand any other bond or security, the conKIRBY, J. (after stating the facts as

the facts as dition was immediately changed when the above). The court erred in not giving the surety on this bond declined to be further instruction as requested. The writing be- bound and notified said company of that tween the parties was unambiguous, and fact. It then had the right to require appelclearly expressed the terms of their con- lee to give further security, since that actract, and they were bound by the stipula- cepted by it had failed through no fault on tion of the compromise agreement relative its part, and it was never the intention of to the continued performance of the contract the parties that the medicine should be furafter the compromise of the suit for the nished without the security of a bond, and breach thereof. It expressly recognized the the writing clearly shows that it was the inexistence of the old contract as binding, and tention to retain such security, and only provided: “The said bond of the said that no other would be required, so long as Haynes is declared to be to the said com- that furnished and accepted remained in pany acceptable, and the said Haynes will force. In other words, the agreement, as not be required to make any new bond or ad clearly expressed in the language thereof, ditional bond, or give any additional bonds- was that the old bond was satisfactory to men, during the life of the said contract," the company, and no other would be required after reciting the execution of the first con- or demanded so long as it was effective. tract for a period expiring March 1, 1915, The company had the right, the surety therethe designation of the territory in which the on having refused to be further bound for demand other security; and appellee, having Clarke Yancey was convicted of murder in refused to furnish it, was not in a position the second degree, and he appeals. Affirmed. to recover damages for the failure of the company to furnish medicines and manufac-Wallace Davis, Atty. Gen., and John P.

Andrews & Burke, of Helena, for appellant. tured articles, which it had never agreed to Streepey, Asst. Atty. Gen., for the State. do without a bond. The written contract being unambiguous, it was the court's duty to construe it, and the court erred in refusing

HART, J. Clarke Yancey was indicted for appellant's said requested instruction num- murder in the first degree, charged to have bered 3, a correct construction of the con- been committed by shooting Luther Surman. tract, which in effect asked a directed ver- He was tried, was convicted of murder in dict. The testimony is undisputed, and the the second degree, and his punishment was court should have directed a verdict in ap- fixed by the jury at imprisonment in the penpellant's favor.

From the judg

itentiary for seven years. The judgment is reversed, and the cause

ment of conviction, he has duly prosecuted dismissed.

an appeal to this court. The facts are as follows:

On the 27th day of February, 1915, Clarke

Yancey shot Luther Surman at a dance at YANCEY V. STATE. (No. 153.)

Trenton, in Phillips county, Ark. One shot (Supreme Court of Arkansas. Oct. 11, 1915.) entered just below the point of the shoulder 1. HOMICIDE Cm 300 - INSTRUCTIONS - SELF- blade and a little to the right side of it; DEFENSE.

and the other shot was lower down, just beOn a trial for homicide, the evidence for the low the last rib. Surman died the day after state tended to show that defendant was drunk and threw or dropped his pistol on the floor; the shooting as a result of his wounds. that S. threw defendant down, and drew the [1] The circumstances attending the shootcartridges out of the pistol; that later defend- ing, as testified to by witnesses for the state, ant demanded the pistol, and, s. having denied having it, defendant precipitated a fight with are that the defendant Clarke Yancey came him; that they were separated, and defendant into the dance hall drunk, went into a room and his friends left the house; that s. became adjacent thereto, pulled out, his pistol, and angry and followed with a chair in his hand; either threw or dropped it on the floor. Lubut that, if he started in the direction of defendant at all, he had changed his direction and ther Surman then came in and threw the dewas going away from him when shot. Defend fendant down on the floor. He then threw ant's evidence tended to show that S. began the the cartridges out of the gun onto the floor fight when he requested his pistol, and that aft- and handed the pistol to some lady present. er he had left the house s. followed, and was advancing on him with a chair and attempting Then he let the defendant up, and both of to strike him when he fired. The court charged them went out of the room. A short time that, if defendant provoked or voluntarily enter-afterwards the defendant came to Surman in ed into the difficulty, or was the aggressor, he the dance hall and demanded his pistol of

presented the state's theory of the case, and was him. Surman denied having the pistol, and not erroneous because of the failure to charge the defendant precipitated a fight with him.

, from the scene of the difficulty, and if deceased Surman got him down and was on top of followed him out of the house and assaulted him, and some of the defendant's friends him, he would have a right to kill deceased, de- then got on top of Surman. Other persons fendant having made no specific objection spe- separated them, and the defendant and his cifically calling the court's attention to this defect, and the court having fully and fairly sub- friends went out of the house. Surman bemitted defendant's theory in instructions pre- came angry, and finally followed them out, pared by his own counsel.

with a chair in his hand raised over his head. [Ed. Note. For other cases, see Homicide, Some of the witnesses for the state testified Cent. Dig. $$ 614, 616-620, 622-630; Dec. Dig. that Surman was going in the direction of Om 300.]

the defendant, and that the defendant snap2. CRIMINAL LAW Om720 - ARGUMENT OF ped his pistol at him, and that when the PROSECUTING ATTORNEY.

Where on a trial for homicide it appeared pistol snapped Surman turned and started that defendant went home after shooting deceas- away from him. They stated that the defended, that he was given a check by his father, ant kept on snapping his pistol, and that aftwhich he cashed with a neighbor the next morn- er it snapped three times it began to fire; two ing without saying anything to the neighbor about having shot deceased, and that he at once bullets entering the body of Surman and releft the country, the prosecuting attorney's sulting in his death. Other witnesses for statement in his argument that, no doubt, when the state testified that when Surman came defendant reached home after committing the murder, he was given a check by his father and out of doors with the uplifted chair he did advised by him that other climes would be more not go in the direction of the defendant, but healthful for him, was justified.

that, when the defendant saw him come [Ed. Note. For other cases, see Criminal around the house with the chair, going away Law, Cent. Dig. $$ 1670, 1671; Dec. Dig. Ons from him, he immediately began to snap his

. 720.)

pistol, and that after it snapped three times Appeal from Circuit Court, Phillips Coun- it fired twice; both bullets entering the ty; J. M. Jackson, Judge.

body of Surman.

According to the testimony of the defend-, seen, it covered the defendant's theory of ant and his witnesses, the defendant, when the case fully by instructions, asked for by he first went into the room adjoining the him. Arnott v. State, 109 Ark. 378, 159 S. W. dance hall, pulled his handkerchief out of 1105; Bruder v. Ştate, 110 Ark. 402, 161 S. his pocket, and in doing so accidentally W. 1067. threw his pistol on the floor; that Surman [2] It is next contended by counsel for the then threw him down and took the pistol defendant that the judgment should be reaway from him; that a little later the de- versed because the prosecuting attorney in fendant requested Surman to give the pistol his closing argument to the jury used the back to him; and that Surman then began a following language: second fight. They testified that after they "No doubt, when this young man reached had been separated the second time the de- home after committing this murder, he was givfendant left the house, and, with some boys him that other climes would be more healthful

en a check by his father, and was advised by who had come to the dance with him, started for him." home, and that Surman then followed him

We do not think counsel are correct in out of the house, and was advancing on him their contention in regard to this language. with a chair and was attempting to strike The record shows that the defendant went him with the chair at the time he fired the home after his difficulty with the deceased ; fatal shots.

that he was given a check by his father, At the request of the state the court gave which he cashed with a neighbor the next the following instruction:

morning; that he did not say anything to the "If you find from the evidence in this case neighbor about having shot the deceased; that the defendant provoked or voluntarily entered into this difficulty with the deceased, then and that he at once left the country. Under he cannot plead self-defense in justification of this state of the record the attorney for the his acts; in other words, if you find from the state was justified in using the language in evidence that the defendant was the aggressor, his argument to the jury. or that he voluntarily entered into the difficulty, then he cannot plead self-defense."

We find no prejudicial error in the record, It is contended by counsel for the defend- and the judgment will be affirmed. ant that the court committed a reversible error in giving this instruction, on the ground that it was not justified by the facts. They ROSS & ROSS v. ST. LOUIS, I. M. & S. R. contend further that the instruction was mis

CO. (No. 163.) leading, on the ground that the court did not (Supreme Court of Arkansas. Oct. 11, 1915.) tell the jury that, if they found from the evi- 1. DAMAGES On 108—MEASURE OF DAMAGESdence that the defendant in good faith sought

LOSS OF USE OF PROPERTY. to retire from the scene of the difficulty, and burning cotton into a pool belonging to plain

Where defendant railway company dumped that the deceased followed him out of the tiffs, used to supply water for their cotton gin house and assaulted him, he would have a mill, and thereby damaged the pool, plaintiffs’ right to kill deceased in his own defense.

measure of damages was not the depreciation in According to the testimony of the state, plant to its former condition, together with the

value of the plant, but the cost of restoring the the defendant was the aggressor throughout usable value during the time they were deprived the difficulty; and according to the testimony of the use of it. of the defendant and his witnesses, the de

[Ed. Note. For other cases, see Damages, fendant had left the house to avoid further Cent. Dig. § 273; Dec. Dig. Om 108.] difficulty with the deceased, and was followed 2. DAMAGES Om62—DUTY TO MINIMIZE DAM

AGES. out of the house by the deceased, who at

Where the proper measure of damages for tempted to strike the defendant with a chair, injury to a pool used by plaintiffs to supply and the defendant then, in order to save his their cotton gin with water is the loss of use own life, shot the deceased.

of the pool and the cost of restoring it to its

former condition, plaintiffs' action is not deThe defendant's theory of the case was feated by failure to restore the pool, for they fully and fairly submitted to the jury in in- were entitled to compensation for the injurious structions prepared by his own counsel. The use of the pool, whether it was restored or not, instruction as given by the court presented and although they subsequently sold their plant,

including the pool. the state's theory of the case. It is not al

Ed. Note.-For other cases, see Damages, ways practicable that a judge should attempt Cent. Dig. 88 119-131; Dec. Dig. cm 62.] to so frame each paragraph of his charge to

Appeal from Circuit Court, Clark County ; the jury as to make it cover all the elements of the evidence. If the defendant thought the

Geo. R. Haynie, Judge. instruction as given was misleading, because

Action by Ross & Ross against the St. it did not contain the qualification now in- Louis, Iron Mountain & Southern Railway sisted upon, he should have made a specific Company. From a judgment for defendant, objection to the instruction and have thus plaintiffs appeal. Reversed and remanded. specifically called the court's attention to the At the trial of this cause in the court bedefect in it. If he had done so the court low appellants offered evidence tending to doubtless would have added the qualification show that they were the owners of a large requested by him; for, as we have already pool near the appellee's station at Okolona.

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

This pool was about 75 feet wide and 125 to the jury upon the theory that appellee feet long, and of a depth ranging from 2 feet had used appellants' property and had damto 5 feet. This pool was used by appellants aged it in its use. The measure of such as the source of water supply in the opera- damages, however, would not be the deprecition of their gin. On the 9th of March, 1913, ated value of the property, but would be the the cotton on the platform at appellee's sta- cost of restoring the property to its former tion caught fire, and about 80 or 90 bales condition, together with compensation for which had been lying on this platform were the usable value during the time appellants carried and thrown into appellants' pool. were deprived of its use, and if the proof upAppellee had given bills of lading for all of on a trial anew does not show that appellants the cotton carried and thrown into this pool, were deprived of the use of the pool, then except 3 bales which were owned by appel- their recovery should be measured by the lants. The cotton covered by the bills of cost of restoring the pool to its condition bela ding was thrown into the pool upon the di-fore the cotton was placed in it. Cavanagh rection of the roadmaster of the railroad v. Durgin, 156 Mass. 466, 31 N. E. 643. company in charge of that division, and

,

[2] It is now urged by appellee that no rethere was also proof that appellee's station covery should be permitted in this case beagent was present and assisted in directing cause appellants did not clear out the pool the removal of the cotton. The cotton ig- and incurred no expense on that account, as nited on Monday, and continued to burn for they sold the entire property before the pool some days notwithstanding the fact that it had been cleared out, and that any expense had been thrown into the pool, and on Wed in that connection was incurred after the nesday following the fire the appellee's dis- sale of the property by them. But we do trict claim agent appeared on the scene and not think that appellants' right of recovery requested appellants to permit the cotton to can be defeated on that account. They were remain in the pool, and stated that the rail- entitled to compensation for the use of the road company would be willing to pay a good pool, whether they cleaned it out or not, and rental for the use of the ground and dam- their right of recovery cannot be defeated beage to the pool, and that, when the fire had cause they did not incur this expense. been extinguished, the railroad company ,

According to the evidence of appellants, would clean up the premises and pay any they made a deduction in the purchase price damages that had been sustained. The cot- of the property which far exceeded the cost ton was allowed to remain in the pool for of repairs, but they would have the right of three weeks, at the end, of which time the recovery whether this was true or not, and portions of it which had not burned were the judgment of the court below will theretaken out and the burned portions, together fore be reversed, and the cause remanded with the bagging and ties, were left in the for a new trial. pool.

Before the beginning of the next ginning season appellants sold their gin plant, which BARTON v. EDWARDS, County Judge, et al. included the pool, and one of the appellants

(No. 154.) testified that the price received was $500 (Supreme Court of Arkansas. Oct. 11, 1915.) less than would have been asked but for the

1. EMINENT DOMAIN On 75—COMPENSATIONdamage done the pool, although he admitted

CONSTITUTIONAL PROVISIONS. that in making the trade nothing was said Const. art. 12, § 9, providing that no propabout the damaged condition of the pool. erty or right of way shall be appropriated to Appellants prayed judgment for this depre- tion therefor shall be first made to the owner

the use of any corporation until full compensaciation in the value of their plant. When "in money" or first secured to him by a deposit appellants rested their case, the court gave of money, applies only to the exercise of the a direction to the jury to return a verdict in right of eminent domain by private corpora

tions, and has no application to the exercise of appellee's favor, and this appeal has been that 'power by the state or subdivisions thereof. prosecuted from the judgment of the court [Ed. Note.-For other cases, see Eminent pronounced thereon.

Domain, Cent. Dig. $$ 198, 199, Dec. Dig. Om

75.] McMillan & McMillan, of Arkadelphia, for

2. EMINENT DOMAIN Om75—COMPENSATION appellants. E. B. Kinsworthy, R. E. Wiley,

CONSTITUTIONAL PROVISIONS. and T. D. Crawford, all of Little Rock, for Declaration of Rights, $ 22, providing that appellee.

private property shall not be taken, appropriated, or damaged for public use without just

compensation therefor, does not require actual SMITH, J. (after stating the facts as payment in money before the state or a county above). [1] The court below did not consider or municipality can exercise the right of emi

nent domain, especially as it does not employ the question of the measure of damages, as the emphatic language used in article 12, § 9, under its view there was no liability. But relative to the exercise of such power by private the right to recover damages, if such a right corporations, that property shall not be approexists, cannot be defeated because appellants priated until full compensation is made “in mon

ey," and payment in county warrants is a comsought to apply an erroneous measure. We pliance with the Constitution, though such warthink this cause should have been submitted / rants are depreciated in value, as the Constitu

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