“(5) The provision in the contract by which the purposes for which it was manufactured defendant was to notify plaintiff of defective and sold. parts in ten days of their arrival do not bind the defendant in this case. The ten days men

[3] Appellee's prayer No. 3 would have been tioned in this contract will not apply in this a correct instruction, if based on the provicase, because the damages for which he sues sions of expressed warranty, and if the case was a resulting damage for a defect that had had been presented to the jury on that theoresulted after the ten days bad expired."

ry, as it should have been. Even if there had The jury returned the following verdict: been no express warranty, the appellant was

“We, the jury, find for the plaintiff in the liable upon an implied warranty, and the sum of $237.58, and find for the defendant on court did not err in submitting that issue to his counterclaim in the sum of $368.”

the jury as it did in appellee's prayer No. 4. The court rendered judgment in favor of pellant made no specific objection to thi the appellee in the sum of $130.42, the dif- prayer, and did not itself offer any prayer for ference between the two sums above. From instruction submitting the issue as to wheththat judgment is this appeal.

er or not the damage of appellee arose from a Joseph Loeb, of Little Rock, and Hutton, defective construction caused by him, and not Davis, Nourse & Bell, of Kansas City, Mo., from any shortage or defect in material of for appellant. J. H. Bowen, of Perryville, which the silo was constructed. and Sellers & Sellers, of Morrilton, for appel

[4] The testimony on behalf of the appellee.

lee tended to prove that the silo was constructed precisely in the manner directed by

the appellant. Appellee, therefore, had the WOOD, J. (after stating the facts as right to insist that the silo, when so constructabove). [1] The contract provides that:

“All claims for shortage, damaged or defective ed, would be useful for the purpose for which parts, must be made by purchaser within 10 it was intended. There is no conflict between days from time of receiving silo."

the expressed and implied warranty from apThe court did not err in instructing the a right to have the issue presented from his

pellee's viewpoint of the evidence, and he had jury that this provision of the contract was

viewpoint. See Blackmore v. Fairbanks, not binding upon the appellee, because under Morse & Co., 79 Iowa, 282, 44 N. W. 548. the undisputed evidence there was no short

[5] The appellant is not in an attitude to age, no damaged or defective parts, which the appellee discovered, or by the exercise of any if any, to appellee resulted from his own fail

complain that its theory that the damages, ordinary care could have discovered within 10 days after the silo was received. Appel- ure to construct the silo properly, rather than lee testified concerning this that he was in

from any defective material, was not made

an issue before the jury, for the reason that experienced in the building of silos, and was no judge of the material of which they were lant made no complaint as to the amount of

appellant presented no such request. Appelconstructed, and from the looks of the materi

the damages. al he could not tell whether it was defective

The judgment is therefore correct, and is or not; furthermore, that the agent, through

in all things affirmed. whom the appellee purchased the silo, saw the material before it was put up, and instructed appellee to go ahead and put it up; and that he relied upon the agent's judgment.

(134, Ark. 241) The testimony on behalf of the appellant was

BUNCH et al. v. CROWE. (No. 340.) to the effect that there was no shortage, and (Supreme Court of Arkansas. May 6, 1918.) that the material of which the silo was con- 1. MORTGAGES Cw 48(2) DESCRIPTIONS structed was entirely free from damaged or VAGUENESS-EFFECT. defective parts. There was no testimony to

Mortgage describing land as residue of W. show that the defects were obvious to one of 22 S. W. 14 Sec. 4, Tp. 2 N., R. 2 E., con

taining 78 acres, more or less, was too vague appellee's experience. The court was fully and indefinite to identify the land, and was justified in not allowing any issue to go to void. the jury as to whether or not the appellee was 2. APPEAL AND ERROR O 931(1)-SCOPE-PREestopped from claiming damages by a failure

SUMPTIONS. to comply with the 10-day clause of the con-chancellor made only a general finding, the court

Where there were only two issues, and the tract.

on appeal should indulge presumption, if there [2] The provisions in the contract, “that was sufficient evidence on either issue to support the silo above ordered is guaranteed accord- the finding that the decree was based on that

finding. ing to the current catalogue,” and the provi

BONA sions in the current catalogue, “We guarantee 3. VENDOR AND PURCHASER Cw242 – Bona

FIDE PURCHASERS RECORD BURDEN OF our long leaf yellow pine silos when properly PROOF. roofed and painted to last and give good sat- Where undisputed evidence showed that isfaction for a period of twenty years,” con- plaintiff purchased for. value, holder of mort

gage containing indefinite description had burstitute an express warranty that the silo den of showing that plaintiff purchased with would preserve the ensilage and was fit for notice of the mortgage.

We

4. VENDOR AND PURCHASER Om 231(14)-BONA Bank & Trust Company, a banking corporaFIDE PURCHASERS_RECORD-NOTICE-VOID tion doing business at Marianna, and said DESCRIPTION

Recording of mortgage containing void de- banking corporation sold and conveyed the scription was not constructive notice to subse- land to appellee. There was an effort to quent purchasers for value.

foreclose the mortgage or deed of trust under 5. FRAUDULENT CONVEYANCES 278(2) which Mrs. Bunch asserts a lien, the land TRANSACTIONS BETWEEN HUSBAND AND

having been advertised for sale by the trusWIFE-BURDEN OF PROOF.

Where husband was insolvent, and wife paid tee under a correct description, and appellee amount of his and her joint mortgage, taking instituted this action in the chancery court assignment thereof, she had the burden of prov- of Lee county to prevent the sale of the land, ing that the transaction was a bona fide purchase of the mortgage with her own funds, and alleging that the sale of the land under a not a fraud upon the husband's creditors.

proper description would constitute a cloud 6. FRAUDULENT CONVEYANCES On 104(2) on appellee's title. TRANSACTIONS BETWEEN HUSBAND AND

[1] The language in the mortgage describWIFE-BURDEN OF PROOF.

Transactions between husband and wife, af- ing the land was too vague and indefinite to fecting rights of creditors, especially where the identify the land, and the mortgage was for husband is insolvent at the time of the occur- that reason void. Hornor v. Jarrett, 99 Ark. rence, are to be scrutinized with care in passing 154, 137 S. W. 820; Scott v. Dunkel Box & upon the question of good faith.

Lumber Co., 106 Ark. 83, 152 S. W. 1025. Appeal from Lee Chancery Court; Edward [2] The evidence was sufficient to justify a D. Robertson, Chancellor.

court of equity in decreeing a reformation of Suit by S. H. Crowe against Mrs. Addie the deed so as to describe the land correctly, K. Bunch and others. From the decree ren- as against the mortgager and subsequent dered, defendants appeal. Affirmed.

purchasers with notice. The chancellor beH. F. Roleson, of Marianna, and C. W. fore whom the case was tried did not make Norton, of Forrest City, for appellants. Dag- any special findings of fact, but merely made gett & Daggett, of Marianna, for appellee. a general finding in favor of appellee. There

were two issues of fact in the case, and if McCULLOCH, C. J. The subject-matter of there is evidence sufficient to support the the present controversy is a tract of land in finding of the chancellor on either of these isLee county, described as the west half of sues, we should indulge the presumption that the southwest quarter of section 4, in town the decree was based on that finding. ship 2 north, range 2 east, except 2 acres in are of the opinion that the finding of the the southwest corner thereof owned and oc- chancellor on either of the issues was not cupied by a certain school district. The against the preponderance of the evidence. parties to the controversy claim title to the

[3, 4] One of the issues in the case was land from a common source, to wit, Henry whether or not appellee was an innocent purBunch, a former owner. Appellant Addie chaser, and the evidence shows that he had K. Bunch is the wife of Henry Bunch, and no actual notice of the existence of the mortasserts a lien on the land under a mortgage gage under which Mrs. Bunch asserts a lien. · executed by her husband, in which the land Appellee testified that he had no information is described in the following language, to on that subject, and the testimony of other wit:

witnesses tends to support him in that con“Residue of the west half of the southwest tention. There is no direct evidence that he quarter of section 4, township 2 north, range 2 had information sufficient to put him upon east, containing seventy-eight acres, more or less notice as to the existence of the mortgage. (Res. w. 1, S. W. 14, Sec. 4, 2 N., 2 E., 78 It being established by undisputed evidence acres).” The mortage was executed by Henry Bunch burden was on appellants to show that ap

that appellee was a purchaser for value, the to W. B. Bunch as guardian of certain children to secure a loan of money in the sum pellee purchased with notice of the existence of $600, as evidenced by a negotiable prom- of the mortgage. Osceola Land Co. v. Chiissory note. Mrs. Bunch, the appellant, join-cago Mill & Lumber Co., 84 Ark, 1, 103 S. W. ed her husband in the conveyance.

She 609. The recording of the mortgage containclaims that before the maturity of the note ing the void description did not constitute she purchased it from W. B. Bunch, guar-constructive notice to subsequent purchasdian, and that the latter assigned the note ers for value. Adams v. Edgerton, 48 Ark. to her. Henry Bunch was subsequently ad- 419, 3 S. W. 628; Neas v. Whitener-London judged bankrupt in the District Court of Realty Co., 119 Ark. 301, 178 S. W. 390, L. the United States for the Eastern Division R. A. 1916a, 525, Ann. Cas. 1917B, 780; of the Eastern District of Arkansas, at Hel- Evans v. Russ, 198 S. W. 518. ena, and appellee, Crowe, claimed title under The other issue of fact in the case was a sale and conveyance made by the trustee whether there was a payment of the note of the bankrupt's estate. The trustee in secured by the mortgage, or whether it was bankruptcy sold and conveyed the land by purchased by Mrs. Bunch from the payee, proper description to the People's Savings / W. B. Bunch, guardian. Mrs. Bunch testified

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

that she purchased the note from W. B. graph messages whose line is wholly within a Bunch and paid him the interest on the note, state does not come within U. S. Comp. St. amounting to about $48, and that she paid sage' and delivering it to an interstate carrier

1916, § 8563, by receiving an interstate mesthe principal by paying the sum of $600 of messages, unless it has an arrangement with to the firm of Lewis & Bunch, of which her the interstate company and its connection for

through continuous transmission. husband was a member, and to whom the

[Ed. Note. For other definitions, see Words guardian owed that sum of money for supplies and Phrases, First and Second Series, Interstate furnished to his wards. The note was in- Commerce.] troduced in evidence showing an assignment 4. COMMERCE Cw28 — TELEGRAPH MESSAGE by the payee to Mrs. Bunch, and W. B. Bunch, FROM ONE STATE TO ANOTHER—“INTERSTATE the payee, also testified that he sold and

COMMERCE. assigned the note to Mrs. Bunch. Mrs. Bunch rier of messages at Indiana for delivery to the

A telegram delivered to an interstate caralso testified that in paying for the note she sendee in Arkansas over a railroad's Arkansas used actual cash which she had in her pos- merce Rulings, Division C, Bulletin 7, p. 94,

came within Interstate Comsession at her home, ten miles in the country providing that if two or more lines are conout from Marianna.

nected so that a message is transmitted direct[5, 6] Considering the relations between the ly from a point within a state, territory, or disparties, that is to say between Mrs. Bunch trict to a point without it, the transmission con

stitutes interstate commerce, and brings all the and her husband, the maker of the note, and participating lines within the purview of the the peculiar way in which the money was Interstate Commerce Act, so that transmission paid in the purchase of the note, and the of the interstate message was interstate comcondition of the accounts of the firm of

merce.

5. COMMERCE O 28-INTERSTATE MESSAGE. Lewis & Bunch against the wards of W. B.

A telegram delivered to a telegraph comBunch, we cannot say that the chancellor pany in Indiana for delivery to the sendee in was not justified in refusing to accept as Arkansas over the telegraph company's line and true the contention of appellant that she had the telegraph line of a connecting railroad was purchased the note and paid for the same. it was delivered to the sendee, and his suit to

an interstate message, and remained so until Transactions between husband and wife, af- recover for mental anguish caused by failure to fecting rights of creditors, especially where deliver the message after it was received at the the husband is insolvent at the time of the place of delivery, as authorized by Kirby's Dig.

§ 7917, was not maintainable. occurrence, are to be scrutinized with care in passing upon the question of good faith, Appeal from Prairie County Circuit Court; and the burden is upon the wife to prove Thos. C. Trimble, Judge. that she purchased the note and paid the

Suit by Angeline La Cost against the Chiaccount of the wards of the payee out of her cago, Rock Island & Pacific Railway Comown funds, and that the transfer of the note pany. Judgment dismissing the contplaint, was not a cloak to conceal the payment there- and plaintiff appeals. Affirmed. of, and to apparently preserve tlie lien for Emmet Vaughan, of Des Arc, for appelthe purpose of defrauding creditors of her lant. Thos. S. Buzbee and Geo. B. Pugh, husband.

both of Little Rock, for appellee. The decree is therefore affirmed.

HUMPHREYS, J. This suit was institut(134 Ark. 92)

éd in the Prairie circuit court by appellant LA COST v. CHICAGO, R. I. & P. RY. Co. against appellee, to recover damages in the (No. 352.)

sum of $1,000 for failure to deliver a tele(Supreme Court of Arkansas. May 6, 1918.) til 5'o'clock p. m., on the 17th day of Janu

gram, announcing the death of her sister, un1. EVIDENCE On 73-PRESUMPTION-COMPLIANCE WITH STATUTE.

ary, 1916, which had been sent to her from A railroad company, engaged in the busi- | Vincennes, Ind., the day before. It was alness of transmitting messages by telegraph leged that appellee was a railroad company in the state of Arkansas, will be presumed to doing a telegraph business over its line exhave complied with Kirby's Dig. $ 7949, provid- tending from Searcy to De Valls Bluff, and ing that any railroad company operating in the state by filing its assent in the office of the that its charge for the message from De secretary of state may do a telephone or tele- Valls Bluff to Des Arc was 25 cents; that graph business.

the message was delivered to the Western 2. COMMERCE C28-RAILROAD TRANSMITTING Union Telegraph Company in Vincennes, Indi, TELEGRAPH MESSAGES.

An interstate railway company doing a on the 16th day of January, 1916, by Louis telegraph business is as much within U. s. Moyes, brother-in-law of appellant, who paid Comp. St. 1916, § 8563, and the rulings and the Western Union the regular tariff rate, regulations of the Interstate Commerce Commission, as if it were a telegraph or telephone plus 25 cents for delivery to appellant at Des company, so that a message received in one Arc, Ark.; that the message was received state to be delivered in another by it can be at De Valls Bluff at 3 p. m. on said day, and classified as interstate.

immediately transmitted over appellee's local 3. COMMERCE @ww28—INTERSTATE TELEGRAPH line to Des Arc, where it remained, and was MESSAGE-"INTERSTATE COMMERCE.'

Under the rulings of the Interstate Com- not delivered until 5 o'clock p. m. on the merce Commission, the initial carrier of tele-17th; that had the telegram been delivered · promptly, appellant would have gone to Vin- prier of messages, whose line is wholly withcennes to see her sister before burial, but in the state, does not come within the purdue to the carelessness of appellee in failing view of section 8563, United States Compiled to promptly deliver the message, she was Statutes, by receiving an interstate message deprived of that privilege, and on that ac- and the delivery of same to an interstate count suffered great pain and anguish of carrier of messages, unless it has an arrangemind, which resulted in complete prostra- ment with the interstate company and its tion for many days, to her damage in said connection for through, continuous transmissum. A general demurrer was filed to the sion of the message. This ruling has no apcomplaint. The demurrer was sustained and plication to the message in the instant case, the complaint dismissed, from which judg- because appellee did not receive the message ment of dismissalan appeal has been prose- in Arkansas to be delivered through an incuted to this court.

terstate carrier of messages and its connec[1-4] It is insisted by appellant that section to appellee in another state, under tion 8563 of the United States Compiled Stat- arrangement between the carriers for a utes of 1916, and the Interstate Commerce through, continuous transmission of the mesRulings of November 1, 1917, bulletin 7, page sage. The message in the instant case was 94, do not apply to interstate railroad com- delivered to an interstate carrier of messages panies; but that under the act and rulings at Vincennes, Ind., for delivery to appellee messages received in one state to be deliver- in Des Arc, Ark., and comes clearly within ed in another can only be classified as inter-division of Interstate Commerce Rulings, state if received and transmitted by tele- bulletin 7, page 94, which is as follows: graph, telephone, or cable companies. This "If two or more lines are connected so that contention is made because railroad com. a person within one state, territory or district panies are not mentioned in the act or rule of the United States, talks with a person at a ings. Practically the same question was be- the United States, or so that a message is trans

point within said state, territory or district of fore this court in the construction of section mitted directly from a point within the state, 7947, Kirby's Digest, known as the "mental territory or district of the United States to a anguish statute.” It was urged upon the point without the same, the transmission of mes

sages in this manner constitutes interstate comcourt that, because the mental anguish stat- merce and brings all the participating lines ute did not specifically designate railroad within the purview of the act.” companies, such companies, though engaged in receiving and transmitting messages, were er, and delivered to the Western Union Telenot included in the act. In construing the graph Company at Vincennes, Ind., and adstatute, this court said:

dressed to appellant at Des Arc. It was to "It is manifest that the Legislature did not be delivered by the Western Union Teleuse the term 'telegraph companies' in any technical sense, but intended to apply to any cor- graph Company to the addressee at Des Arc poration or association doing a public telegraph over its own, and through connecting lines. business."

It was strictly a message to be directly The two statutes are very much alike, and transmitted from a point in the state of Init would be inconsistent for this court to diana to a point in Arkansas, or from a construe the statutes differently. Further- point within a state to a point without the more, it is provided by section 7949 of Kir-state. The message in character was interby's Digest that any railroad company op- state, and, being interstate, is controlled by erating in this state may, by filing its as the rule announced on rehearing in Westsent in the office of the secretary of state, ern Union Telegraph Company v. Compton, do a telephone or telegraph business. Ap- 114 Ark. 200, 169 S. W. 946. We cannot folpellee is correct in the suggestion that a rail- low appellant in her contention that the suit road company engaged in such business in is for a tort committed by failing to deliver the state of Arkansas will be presumed to the message after it was received in Des have complied with the statute. We think Arc, Ark. The message did not reach its an interstate railway company doing a tele- destination within the meaning of the law graph business comes as clearly within the until it was delivered to the addressee. The purview of section 8563, United States Com- ruling of the lower court, to the effect that piled Statutes and the Rulings and Regula- the message was interstate, and that section tions of the Interstate Commerce Commis- 7947, Kirby's Digest, was inoperative as a sion, as if it were a telegraph or telephone basis for damages, was correct, and the company. Under the rulings of the Inter- judgment dismissing the complaint is therestate Commerce Commission, the initial car- fore affirmed.

[

(134 Ark. 265)

station before the train reached Clarendon EDWARDS v. ST. LOUIS SOUTHWEST-by calling it aloud in the car in which the ERN RY. CO. (No. 345.)

plaintiff was riding. Three or four passen(Supreme Court of Arkansas. May 6, 1918.) gers got off the train at Clarendon. The

conductor did not know that plaintiff had 1. CARRIERS O272- CARRIAGE OF PASSEN- failed to get off of the train until after it GERS-ANNOUNCEMENT OF STATIONS. Though a railroad carrying passengers must

had crossed the bridge of White River below have the names of the stations announced on Clarendon. The plaintiff got off at the next arrival long enough to enable a passenger to get stop. off safely, and is liable for loss or injury re- The court directed a verdict for the desulting to a passenger from violation of the fendant railway company, and the plaintiff duty, after properly announcing the name of a station, the railroad is not bound to give per has appealed. sonal notice to a passenger on an ordinary passenger train that his station has been reached.

Emmett Vaughan, of Des Arc, for appel2. CARRIERS C 276(1) - CARRIAGE OF Pas- lant. Daniel Upthegrove and J. R. Turney,

PASSENGERS-NEGLIGENCE-BURDEN OF PROOF. both of St. Louis, Mo., and Hawthorne &

In an action against a railroad for injuries Hawthorne, of Jonesboro, for appellee. sustained by plaintiff passenger when carried by his destination and forced to walk back in the nighttime, the burden was on plaintiff to

HART, J. (after stating the facts as show that his injuries were sustained by reason above.) [1] It is well settled that a railroad of the railroad's negligence.

company carrying passengers, in order to af3. CARRIERS 276(1)–CARRIAGE OF PASSEN- ford them an opportunity to leave the train

Om
GERS-NEGLIGENCE-EVIDENCE.

The burden to prove the railroad's negli- at their place of destination, is bound to gence being on plaintiff passenger suing it for have the names of the different stations aninjuries caused by carrying him past his sta- nounced, upon the arrival of the trains, for tion, he could not discharge it by negative a sufficient length of time to enable a passentestimony that he took the first seat in the car, so that he would be more likely to hear his sta- ger to get off with safety, and that a railtion called, and that the conductor did not take road company is liable for a loss or injury up his ticket until after the train had passed his which may result to a passenger from a viostation.

lation of this duty. After properly announcAppeal from Circuit Court, Prairie Coun- ing the name of a station, however, the carty; Thos. C. Trimble, Judge.

rier is not bound to go further, and give perAction by R. S. Edwards against the St. sonal notice to a passenger traveling on an Louis Southwestern Railway Company. From ordinary passenger train that his station has judgment for defendant, plaintiff appeals. been reached. The carrier is not required to Affirmed.

go through the train and see that every per

The

son has safely passed out of the cars. R. S. Edwards sued the St. Louis Southwestern Railway Company to recover dam

reason is the passengers entered the cars of

their own volition to travel to a particular ages which he alleges he sustained by reason of the negligence of the railroad company's place, and it is presumed that they will leave servants in not giving him notice when the the car when their station is called and the passenger train on which he was riding train stops there. Fetter on Carriers of Pasreached his destination.

sengers, vol. 1, § 301; Hutchinson on Carriers According to the testimony of the plaintiff, (30 Ed.) vol. 2, § 1121; Mitchie on Carriers,

3d , he sat up with his wife who was sick, untii vol. 2, par. 2475; 6 Cyc. 587; Seaboard Air after midnight. He bought a ticket from Line Railway v. Rainey,

Line Railway v. Rainey, 122 Ga. 307, 50 S. E. Brinkley to Clarendon, and embarked on one 88, 106 Am. St. Rep. 134, 2 Ann. Cas. 675, and of the company's passenger trains for his note; Southern Railroad Co. v. Kendrick, 40 destination. He was very tired and sleepy,

Miss. 374, 90 Am. Dec. 332; Gilkerson y. Atand on that account took a seat in the first lantic Coast Line Railroad Co., 99 S. C. 426.

, chair in the coach, and placed his ticket in 83 S. E. 592, L. R. A. 1915C, 664, Ann. Cas.

, his hatband, so that he would be either 1916B, 248, and note. awakened by the train officer's touching him

[2, 3] It is contended by counsel for the to take up his ticket, or he would hear the plaintiff that even if this be the law, the station announced when the door was opened court erred in directing a verdict for the de- . for that purpose. Clarendon is only a short fendant.

fendant. We do not agree with counsel in distance from Brinkley. The conductor did this contention. It is not claimed by the not take up his ticket until he had passed plaintiff that he was injured by the running Clarendon. The plaintiff got off at the next of the train. Hence there was no presumpstation, and had to walk back to Clarendon tion of negligence in his favor. According to in order to be there in time to go to work. his own testimony, his injuries were caused He had to walk a trestle three miles long, by walking back to Clarendon in the nightand his exposure caused him to have a spell time after he had voluntarily left the train. of sickness.

It devolved upon the plaintiff to show that According to the testimony of the conduc- his injuries were sustained by reason of the tor, he took up the plaintiff's ticket between negligence of the railroad company. His tesBrinkley and Clarendon. He announced the

He announced the timony to the effect that he took the first