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"That the general welfare of society and not | individual profit is the object for which this charter is granted and hence the members are not stockholders in the legal sense of the term and no dividend or profit shall be divided among

the members."

purposes. Ward Seminary v. Nashville, 129 Tenn. 412, 167 S. W. 113; Cumberland Lodge v. Nashville, 127 Tenn. 248, 154 S. W. 1141. In M. E. Church South v. Hinton, 92 Tenn. 190, 21 S. W. 322, is was said:

The words "purely" and "exclusively" are synonymous, and require that the property be used wholly for the purposes mentioned, and not to any extent for gain or profit, unless the gain or profit be used for the purposes mentioned. Lodge v. Nashville, supra; Church v. Hinton, supra.

It appears from the bill and its Exhibit A exemptions are based is a benefit conferred "The fundamental ground upon which all such that the principal purpose, efforts, and work upon the public by such institutions, and a of complainant are to promote the commer-consequent relief to some extent of the burden cial interests and general welfare of the city upon the state to care for and advance the inof Memphis, as expressly stated in its char- terests of its citizens." ter. As appears from Exhibit A, which is the annual reports of the work of complainant, it is engaged-among other things in the improvement of labor conditions, foreign trade and merchant marine, traffic and transportation, good roads and highways, municipal civic conditions, and public health in the city of Memphis. It is also engaged in agricultural development in the Memphis territory, [2] Now, can complainant be termed a corand uses its best efforts to encourage the lo-poration operated exclusively for religious, cation of new industries and enterprises in charitable, scientific or educational purposes? the city of Memphis. It entertains conven- We think not. It is true it is not a corpotions and distinguished visitors who may ration for profit, but, as before stated, its visit the city, and looks after other matters primary object is to promote the business of public interest to the city of Memphis and and commercial interests of the city of Memits citizens. For instance, it takes an in- phis. This is expressly stated in its charter. terest in law enforcement, education, and the We are of the opinion, therefore, that it canpublic safety of the citizens of Memphis. not claim the benefit of the exemption extended to religious, charitable, scientific, or educational institutions. The mere fact that it administers to charity, or may give instructions of an educational nature along certain lines, does not render it an educational or charitable institution in the sense of our Constitution and statute exempting the property of such institutions from taxation.

Article 2, section 28, of our Constitution, provides as follows:

"All property, real, personal or mixed, shall be taxed, but the Legislature may except such as may be held by the state, by counties, cities or towns, and used exclusively for public or corporation purposes, and such as. may be held and used for purposes purely religious, charitable, scientific, literary or educational, and shall except one thousand dollars' worth of personal property in the hands of each taxpayer, and the direct product of the soil in the hands of the producer, and his immediate vendee."

In Tri-State Fair v. Rowton, 140 Tenn. 304, 204 S. W. 761, L. R. A. 1918F, 657, this court held that the Tri-State Fair at Memphis, which was chartered and organized under the same statute that complainant was chartered and organized under, and was an or

The statute based on this provision of the Constitution, in so far as the same bears up-ganization similar in character to complainon the question under consideration, exempts the following property from taxation:

"All property belonging to any religious, charitable, scientific, or educational institutions, when used exclusively for the purpose for which the institution was created, or is unimproved and yields no income. All property belonging to such institution used in secular business and competing with a like business that pays taxes to the state shall be taxed on its whole or partial value in proportion as the same may be used in competition with secular business." Subsection 2 of section 2, chapter 602, Acts of 1907.

[1] The construction which has been given to the above provision of the Constitution, and to revenue statutes similar to the act of 1907, is that all property is rendered exempt from taxation which is used exclusively for religious, charitable, scientific or educational

ant, was not a charitable, scientific, or educational organization, and was therefore liable for injuries occasioned by the negligence of its officers and agents.

This court also held in the case of W. B. Business Men's Woods, administrator, v. Club of Memphis, Shelby Law, manuscript opinion, in which case the defendant was the same institution now involved as complainant here, but whose charter was subsequently amended by changing its name only, that said institution was not a scientific, charitable, or educational institution, but was a social and a co-operative organization among the business men of Memphis for the purpose of improving the business interests of the city of Memphis.

We do not think there is any error in the decree of the Court of Civil Appeals, and the writ is denied.

(144 Tenn. 298)

(232 S.W.)

Section 4689 of Shannon's Code is as fol

DARBY v. PIDGEON THOMAS IRON CO. lows:

"The plaintiff may, at any time before the

(Supreme Court of Tennessee. June 24, 1921.) jury retires, take a nonsuit or dismiss his ac

Dismissal and nonsuit 7 (2)-Plaintiff may take nonsuit "at any time before the jury retires," though motion for directed verdict sustained,

Under Shannon's Code, § 4689, providing that the plaintiff may, "at any time before the jury retires," take a nonsuit, plaintiff may take a nonsuit after a motion for a directed verdict has been sustained; "at any time before the jury retires" meaning before the jury has "begun to consider of their verdict."

Certiorari to Court of Civil Appeals.

Action by H. W. Darby against the Pidgeon Thomas Iron Company. Motion by plaintiff for nonsuit denied, and verdict for defendant directed. On petitions for certiorari by both parties to review action of Court of Civil Appeals, reversing case on the facts and affirming the action of the court in declining to permit a nonsuit. Reversed and remanded for purpose of entering nonsuit.

Wilson & Armstrong, of Memphis, for plaintiff in error.

Ewing, King & King, of Memphis, for

fendant in error.

de

MCKINNEY, J. Mr. Darby sued the Iron Company for damages resulting from an automobile collision.

At the conclusion of the plaintiff's evidence a motion for a directed verdict was made by the defendant company. Thereupon plaintiff introduced other evidence, at the close of which the court remarked: "Well, the evidence is not sufficient. The motion will have to be sustained." Whereupon the plaintiff announced that he would take a nonsuit, to which the court replied: "It is too late now, Brother Hays." To this action of the court the plaintiff duly excepted.

tion as to any one or more defendants, but if the defendant has pleaded a set-off or counterclaim, he may elect to proceed on such counterclaim in the capacity of a plaintiff."

The plaintiff's right to take an involuntary nonsuit is absolute, and cannot be denied him when applied for within the time prescribed by the statute. Partlow v. Eilliott, Meigs, 547.

In a jury case the plaintiff may take a nonsuit "at any time before the jury retires" -that is, before the jury has begun "to consider of their verdict"-but not thereafter.

Railroad v. Sansom, 113 Tenn. 683, 84 S. W. 615; Donaghy v. McCorkle, 118 Tenn. 77, 98 S. W. 1050; Dodd v. Railroad, 120 Tenn. 446, 110 S. W. 588; Cunningham v. Terminal Co., 126 Tenn. 356, 149 S. W. 103, Ann. Cas. 1913E, 1058.

Certainly in this case the jury had not begun to consider of their verdict when the motion for a nonsuit was made. The jury were out of the courtroom and had not been charged by the court. We are of the opinion

that the plaintiff's motion for a nonsuit was in season and should have been granted.

Before the passage of the above statute a nonsuit could be taken after the verdict and before it was recorded. Hendrick v. Stewart, 1 Overton, 476; Railroad v. Sansom, supra; Dodd v. Railroad, supra.

In the case of Brackin v. McGannon, 137 Tenn. 207, 192 S. W. 922, a motion for a directed verdict had been made. After the moplain-rected tion had been argued at some length, the court suggested that he was of the opinion that the motion would have to be sustained, but adjourned court until another day of the term, in order to give counsel an opportunity to examine authorities and to further consider the motion. Upon the reconvening of court, and before the court had acted on the motion of

The jury was out of the courtroom during defendant, the plaintiffs moved the court to all of the foregoing proceedings.

After declining to permit the plaintiff to take a nonsuit, the court had the jury brought into the courtroom, and thereupon directed them to return a verdict in favor of the defendant, which they did.

Upon appeal, the Court of Civil Appeals reversed the case upon the facts. That court also affirmed the trial court in declining to permit a nonsuit-Justice Wilson dissenting as to the latter holding.

Both parties have filed petitions for certiorari in this court.

If the plaintiff had a right to take a nonsuit, the case will have to be remanded, and in that event it will be unnecessary for us to pass upon the merits of the case.

permit them to take a nonsuit, which motion was disallowed by the trial judge, and upon appeal this court said:

"It will be observed that section 4689, supra, provides that plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action.

* * It is also settled by the decisions of this court that a motion for peremptory instructions, even where made by both parties to the suit, does not operate to withdraw the case from the jury. Such a motion simply has the effect of calling upon the trial judge to determine whether there is any subcides there is no substantial conflict, he then stantial conflict in the evidence, and, if he dedirects the jury to return a verdict in accordance with the law as applied to the undisputed facts. * * * *

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

"The right to take a nonsuit is a right given | v. Wentworth, 60 Ind. App. 591, 108 N. E. by statute to plaintiff, and is such a right, when 975; Chicago, M. & St. P. Ry. Co. v. Metalduly exercised, as cannot be taken from him staff et al., 101 Fed. 769, 41 C. C. A. 669. by the defendant by the making of a motion for a directed verdict." Sprankle v. Meyernick, 4 Tenn. Civ. App. 515.

Under similar statutes in other jurisdictions the courts, with few exceptions, hold that a plaintiff has a right to take a nonsuit after a motion for a directed verdict has been sustained. 18 Corpus Juris, 1156; Daube v. Kuppenheimer, 272 Ill. 350, 112 N. E. 61; Haile v. Mason Hotel Co., 71 Fla. 469, 71 South. 540; Arpy v. Iowa Brick Mfg. Co., 150 Iowa, 431, 130 N. W. 393; Malone v. Erie R. R. Co., 90 N. J. Law, 350, 101 Atl. 415; Hall v. Chess & Wymond Co., 131 Ark. 36, 198 S. W. 523; Gulf & S. I. R. Co. v. Williams, 109 Miss. 429, 69 South. 215; Van Sant

Other cases could be cited to the same effect.

Contra: Turner v. Pope, Motor Car Co., 79 Ohio St. 153, 86 N. E. 651; Barrett v. Virginia Ry. Co., 244 Fed. 397, 157 C. C. A. 23; Bee Building Co. v. Dalton, 68 Neb. 38, 93 N. W. 930, 4 Ann. Cas. 508.

It results that both petitions for writs of certiorari will be granted. certiorari will be granted. The judgment of the Court of Civil Appeals will be reversed, and the case will be remanded to the circuit court of Shelby county for the purpose of entering a nonsuit.

The plaintiff will pay the costs incurred in the trial court, and the defendant will pay the costs of the appeal.

(232 S.W.)

CRAIG v. COX et al. (No. 21812.)

Clarence Craig, Trustee in Bankruptcy of A.
B. Wilgus, Jr., Plaintiff, v. Frank Sharp and
George Cox, Defendants, and the case of Clar-

(Supreme Court of Missouri, Division No. 1. ence Craig, Trustee in Bankruptcy of A. B.

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Wilgus, Jr., Plaintiff, v. Frank Sharp and Nettie Sharp, Defendants, were, by agreement, tried together, on May 12, 1919, before Hon. J. D. Perkins, judge of division No. 1 of the circuit court of Jasper county, Mo., and under an agreement that the testimony taken should apply to each case, so far as applicable and pertinent."

Three of the cases went to the Springfield Court of Appeals. Craig v. Sharp et al., 219 S. W. 95; Sharp v. Harrington (Craig, Intervener) 219 S. W. 97; Craig v. Sharp et al., The records are the same 219 S. W. 98.

In an action by a trustee in bankruptcy to set aside conveyances by the bankrupt as preferences, held, that there was no variance between the evidence and a petition charging that the bankrupt caused the conveyances to be made to defendants to secure payment of certain sums due, defendants taking title in trust for themselves and their codefendants. 2. Bankruptcy 303 (3)-Grantee held to have knowledge that conveyance by bank-in all four cases as counsel for appellant rupt would constitute preference. have indicated. The instant case reached us solely because title to real estate is involved. The general facts are fully stated and discussed in Craig v. Sharp et al., supra. The detailed facts of this conveyance of real estate were not so fully set out by the Court of Appeals, because it was but an incident in those cases. Judge Bradley, for the Court of Appeals, in Craig v. Sharp et al., supra, thus

In a suit by a trustee in bankruptcy to set aside conveyances to defendants as preferences, evidence held to sustain a finding that defendants had reasonable cause to believe that the conveyances would constitute a preference.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Clarence Craig, trustee in bank-outlines the general facts of the record: ruptcy of the estate of A. B. Wilgus, Jr., against George Cox and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Owen & Davis, of Joplin, for appellants.
R. M. Sheppard, of Kansas City, and H. S.
Miller, of Joplin, for respondent.

GRAVES, J. This is an action by a trustee in bankruptcy to set aside a conveyance of real estate in Joplin Mo., on the ground that such conveyance constituted a preference. A. B. Wilgus, Jr., had been engaged in the nefarious business of forging and selling duplicate notes and mortgages. His career ended by a term in the state penitentiary, where he now resides. The end of his business career did not come to this righteous end, however, until he had fleeced divers · persons out of some $90,000. A petition in bankruptcy was filed against Wilgus on July 27, 1918, and he, in due course, was adjudicated a bankrupt. Defendants were some of the victims of Wilgus. It is stated that Frank Sharp and defendant George Cox got everything left of the Wilgus wreck-at least every visible thing. Growing out of the activities of Sharp and Cox to save themselves, and members of their families, who were also victims, some four suits were instituted. Counsel for the present appellants thus state the situation:

"The above-entitled cause (meaning the cause now for decision), and the cases of Frank Sharp, Plaintiff, v. A. J. Harrington, Defendant, and Clarence Craig, Trustee in Bankruptcy of A. B. Wilgus, Jr., Intervener, and of

"In this case plaintiff, the trustee of the bankrupt estate of A. B. Wilgus, Jr., sought to recover from defendants the sum of $1,500 paid to them by Wilgus. The petition is in two counts, one on a $500 payment, and one on a $1,000 payment, and is bottomed on the proposition that the payments constituted a preference. The answer admits the bankruptcy of Wilgus, but denies generally the other allegations. Plaintiff trustee recovered, and defendants appealed. This cause is similar to and was tried with two other causes, Nos. 2548) and 2549, 219 S. W. 97, 98, all being consolidated below and tried as one. Separate judgments were rendered, however, and they are docketed separately here, but have the same by Frank Sharp, a creditor of Wilgus, against abstracts and briefs, Our No. 2548 was filed A. J. Harrington, to recover of Harrington $1,700 in Harrington's hands, but belonging to Wilgus, and for which Wilgus had given Sharp an order. Craig, trustee, by leave, filed an intervening petition, and judgment in that cause was in favor of the trustee, and from that judgment Sharp appeals. No. 2549 was by Craig, trustee, against Sharp and his wife, to recover $17,500 which Wilgus paid back to Sharp some 10 days after Sharp had bought for his wife a certain note from Wilgus. In this last case judgment was for Sharp and wife, and the trustee appealed. The cases were tried before the court without a jury, and no declarations of law were asked or given. The only question here is the sufficiency of the evidence.

"The evidence pertinent to the case in hand, as well as the others, shows that A. B. Wilgus, Jr., had been dealing extensively in Joplin in real estate securities, and that he was also interested in some oil leases in Kansas, and some mining properties in Howell county, Mo., and in Oklahoma. His swindle game was to is

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

sue or have issued by others duplicate notes, [it was the same property Wilgus had shown sometimes triplicate and more, and sell these him. Gentry thought it looked 'funny.' Sharp various notes. A genuine trust deed would at the time did not have his note at hand, and sometimes secure the amount specified in a by agreement Sharp and Gentry met that single note, but the trust deeds purporting to night at Gentry's office to compare papers. secure the nongenuine notes were forgeries, A comparison disclosed that the notes were as were the certificates and seal of the re- identical, as well as the purported trust deeds. corder. In some instances there were none gen- There was an abstract with each made by difuine, but all were forgeries. Wilgus had been ferent abstractors, and passed upon by difoperating in Joplin for several years, and ferent counsel. Sharp and Gentry sought then just when his swindling career commenced does to get in touch with Wilgus, and while they not appear, but it does appear that at the time were thus engaged Wilgus appeared at Genhe was adjudged a bankrupt he had succeeded try's office. Confronted with the duplicate in negotiating between $75,000 and $90,000 of notes, Wilgus contended there was some misforged notes and securities. What Wilgus did take, perhaps by his stenographer, that there with this money does not appear. The trus- were second trust deeds on lots 41 and 42, tee in bankruptcy found no property of con- and that probably his stenographer had given sequence. Wilgus was sent to the peniten- Gentry the wrong abstract. Gentry did not tiary, and much litigation is one of the results have a trust deed with the note he had, but of his 'career.' he had an abstract showing the trust deed. Gentry demanded back his check, and Wilgus then and there returned it. Sharp also demanded back his money that he had paid Wil

Wilgus agreed to return Sharp his money, and on Monday afterwards, April 24th, complied with his promise. The return of this money to Sharp is the foundation for the action of the trustee in case No. 2549.

"The evidence shows that Wilgus negotiated the sale of four forged notes of $1,260 each, with a credit of $50 on each note on what is designated in the record as the Hood prop-gus for the note some 10 days previous, and erty. These notes purported to be signed by Chas. H. Benefield and wife. Defendant Sharp bought two of these notes, and defendant Cox bought two. Cox bought his notes in August, 1917, but it does not appear when Sharp bought. All these notes were identical, and each set of two, as we understand, purported to be secured by trust deed on the Hood property. On May 1, 1918, defendants, Sharp and Cox, who occupied the same desk at their place of business, brought up in conversation the subject of their investments. Mutual exchange of information disclosed that each had $2,400 in notes negotiated by Wilgus and purporting to be secured by trust deed on the Hood property. It was further disclosed that the notes and trust deeds they held were exact duplicates. Sharp had had an experience with Wilgus or concerning Wilgus on the night of April 22d prior in Gentry's office, in substance as follows: Some 10 days prior to April 22d, Sharp had bought a note from Wilgus for $1,750, purporting to be secured by trust deed on lot 41 in Byer's & Murphy's-addition. This note was dated April 1, 1918, and signed by W. E. Williams and Myrtle Williams. Wilgus had also enlisted the services of Gentry to sell a duplicate of the note Sharp had bought. Sharp was one of Gentry's clients to whom he occasionally sold securities, and Gentry called upon Sharp with the idea of selling him the $1,750 note. It seems that Gentry had an understanding with Sharp that he (Sharp) would buy the note Gentry had for sale, before Sharp had seen the note or knew anything in particular concerning it. Anyway, Gentry, a few hours before he called on Sharp with the note and trust deed, had given Wilgus his own check for the note with the understanding that the check would be returned if Gentry failed to dispose of the note.

"When Gentry appeared at Sharp's place of business with the note and security, and it was disclosed that the note was for $1,750, and purporting to be secured by trust deed on lot 41, Sharp advised that he already had a note, or rather his wife did, for $1,750, which he had bought from Wilgus, and secured by trust deed on lot 41. Sharp and Gentry went out and looked at the property, and Sharp insisted that

Wil

"The facts stated in the last paragraph were, of course, known to Sharp when he and Cox discovered that they had duplicate notes on the Hood property. After their discovery Sharp related to Cox the incidents relative to the $1,750 note on lot 41. Thereupon Sharp and Cox sought to get in touch with Wilgus, and ascertained that Wilgus was in Kansas. Sharp at once proceeded by the first train to Paola, Kan., where he met and conferred with Wilgus at 6 o'clock next morning, May 2, 1918. Wilgus admitted that the notes held by Sharp and Cox were duplicates, and did not know which was genuine. It later turned out, however, that neither was genuine. gus declared that was the first crooked step he had ever taken. The result of Sharp's trip to Paola was that he received from Wilgus for himself and his codefendant, Cox, an assignment of certain mining properties in Howell county, Mo., to secure the $4,800 in notes held by defendants Sharp and Cox. On May 12, 1918, Wilgus' agent paid $500, and on May 23, $1,000 more, on the $4,800. These payments were made in pursuance of the agree-. ment between Wilgus and Sharp at Paola, Kan. Sharp and Cox divided the $1,500 between them. On May 23, 1918, Wilgus gave Sharp the order on Harrington which is the foundation for case No. 2548. Later, on June 29, 1918, after Wilgus had been arrested and was in jail, Sharp obtained from him a second or supplemental order on Harrington to 'pay Mr. Sharp all the money that is due me as fast as you collect it."

Going more particularly to our case, the record shows that one Daniel R. Stanford held title to lot 348 in North Heights addition to city of Joplin, being the property involved here. It was covered by a mortgage, but the equity therein was held by Stanford for A. B. Wilgus, Jr., and on May 29, 1918, Wilgus caused this property to be deeded to

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