meaning. We said there that was an unam- designated as agent upon written notice to biguous contract and that the court should not that effect in case of the agent's violation only have construed it, but should have con- of this contract or in the event of his failstrued it as constituting the relation of buy- ure to satisfactorily discharge these duties er and seller, and not that of principal and under his agreement. The contract now unagent. While this is apparently the same der consideration does not contain the provimedical company which was a party to the sions which we said made those contracts litigation in the last-cited case, it appears ambiguous; and the court should therefore that the contracts set out in the two cases have construed the contract according to its are not identical. We think, however, that unambiguous terms as one for the purchase the contract in the instant case is no more of goods, wares, and merchandise, with a ambiguous than was the contract in the for- guaranty of payment therefor. mer case to which this medical company was a party. The trial court took the opposite view and permitted the introduction of testimony which was intended to explain the nature of this contract and which is said to show that the contract was, in fact, one of principal and agent. The evidence in this respect is substantially the same as the testimony in the Holcomb Case, supra; but such testimony cannot import into a contract an ambiguity where none otherwise exists.

It is very earnestly insisted by counsel for appellee that this case is concluded by the opinion of this court in the cases referred to above in 115 and in 124 Arkansas. But a comparison of the contracts set out in those cases will disclose a number of points of difference. There are provisions contained in the contracts set out in the earlier cases which do not appear in the contract now under consideration, and it is these provisions which we said created the ambiguity which rendered admissible the parol testimony which was offered to explain this ambiguity. For instance, in the Williams Case, supra, we said that the jury might have found:

"That the consignee was not definitely and absolutely bound, at all events, to pay for the goods. That the consignee could fulfill his contract by accounting to the consignor for all goods sold and by returning to the consignor the unsold goods. That the consignee had the right, under any circumstances, to return any of the consigned goods. That no part of the purchase price for the goods became due the consignor except upon a sale made by the consignee. That the goods were not to be paid for as upon a sale to the consignee, but only upon a sale by the consignee. That the consignee was to render regular accounts and reports of the business, showing the amounts and prices of goods sold, whether sold for cash or credit, the amount of goods on hand and outstanding accounts. That there was no stipulation either to sell or to pay for the goods in a fixed time. That all unsold goods were to be returned to the consignor when the contract was terminated by either party."

[2] In those cases the purchaser was referred to as an "agent," and, while we said that his designation as an agent was not controlling and did not, of itself, render him such, still it was one of the circumstances to be considered in determining what that relation was. We also there pointed out that the contract gave to the medical company the right to terminate the services of the person

The judgment of the court below will therefore be reversed, and, as the sum due is not in dispute, judgment will be rendered here for the amount of the note.

CLARK v. ST. LOUIS, I. M. & S. RY.
CO. et al. (No. 128.)

(Supreme Court of Arkansas. Feb. 4, 1918.)
1. RAILROADS 453-FIRES-LIABILITY.

Under Acts 1907, p. 336, § 1, declaring that struction of or injury to any property which a railroad company shall be liable for the demay be caused by fire or result from any locomotive, engine, machine, train, car, or other thing thereof, or which may result from or be caused used upon such railroad, or in the operation by any employé, agent, or servant of such corporation upon or in the operation of the railble, not only for fires set out by its locomotives road, a railroad company, while absolutely liaand machinery, but for fires set out by its employés while engaged in the work of cleaning or repairing the roadbed or right of way, is not absolutely liable for fires which may have spread on the railroad right of way, and which its servants have failed to extinguish, or which may have been lighted thereon by other persons, and which the railroad employés have not restrained or extinguished, and in such case proof of negligence is essential to recovery. 2. RAILROADS 485(8) — FIRES ACTIONS INSTRUCTIONS.

In an action against a railroad company for injuries to plaintiff's property from fire, where the answer set up contributory negligence, an instruction that if plaintiff's agent, knowing of the proximity of the fire, negligently failed to take precautions, verdict should be for defendant, notwithstanding negligence on the part of its servants in leaving the fire on the right of way, was proper.

3. RAILROADS 131-RIGHT OF WAY-LEASE

OF PROPERTY.

grounds, tracks, and right of way for the pubWhile a railroad company holds its station, lic use for which it is incorporated, yet such property is private, and the company may demise such lease does not interfere with its franchise a temporary use of the right of way where as a public carrier, and may tend to benefit it. 4. RAILROADS 133(5)-LEASES TERMINA

TION.

Where a lease of a portion of a railroad right of way for a lumber mill provided for termination on 30 days' notice by either party, it will, it appearing that the lease had not been so terminated, be presumed to continue in existence, notwithstanding the operation of the lumber mill had ceased, and the lease was no longer fulfilling its function of developing freight for the railroad company.

5. RAILROADS 481(1) - FIRES EVIDENCE.

ACTIONS

In an action against a railroad company for destruction of plaintiff's property along the right of way, evidence of a forest fire in the vicinity which might have caused the destruction of plaintiff's property is admissible. 6. RAILROADS 485(4) FIRES - ACTIONS INSTRUCTIONS.

In an action for injuries to plaintiff's property, resulting from fire, where there was evidence that the fire might have resulted from some cause other than that of the railroad company, an instruction that verdict should be for the railroad company if the probabilities were equal that such fire might have resulted from causes for which the company was not liable was proper.

Appeal from Circuit Court, Clark County; Geo. R. Haynie, Judge.

Action by James G. Clark against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Instructions referred to are as follows: Instruction No. 8A, asked by defendant (appellee), was as follows:

fense of contributory negligence, and also the provisions of a lease contract which the appellees alleged was a bar to appellant's cause of action.

I. There was testimony from which the jury might have found that appellant's mill was destroyed by fire which originated either from appellees' locomotive, or by fire which originated from some unknown cause, and was discovered by the section foreman on appellees' right of way near appellant's mill some three or four days before the mill was burned.

It could serve no useful purpose to set out in detail the testimony bearing upon the issue as to the origin of the fire, and also upon the issue as to whether or not appellees' servants were negligent in not putting out or controlling the fire after discovering the same, and also upon the issue as to whether or not the fire was caused by appellant's negligence. These were issues of fact for the jury.

[1] The principal question to be determin"If you believe from the testimony that the ed on this appeal is whether or not, under plaintiff had an agent to look after the mill, the act of April 2, 1907, the appellees were and that the agent knew of the fire burning near the mill, and knew, or by the use of ordinary liable to appellant in damages for the loss care could have known, that the same exposed of his mill caused by fire which was known the mill to destruction by fire, and that he failed to use ordinary care to prevent the same, then your verdict should be for the defendants, notwithstanding you should find that the fire caught from a fire negligently or carelessly left by defendants' employés on the right of way, if you believe there was any such fire negligently left on the right of way.'

Instruction No. 6, asked by defendant (appellee), was as follows:

"The court instructs you that if the evidence in this case fails to show how the fire started, or if from the evidence you believe that it is equally as probable that the fire started from some other cause as that it started from sparks or cinders from defendants' locomotive, or from a fire on the right of way which was negligently permitted to spread by defendants' employés, then your verdict should be for the defendants." J. H. Crawford and Dwight H. Crawford, both of Arkadelphia, for appellant. E. B. Kinsworthy and R. E. Wiley, both of Little Rock, for appellees.

by the employés of appellees to exist on the right of way of the railway company some three or four days before the mill was destroyed, without other proof of negligence. The act, in substance, makes railway companies liable for the destruction of or injury to any property "which may be caused by fire, or result from any locomotive, engine, machinery, train, car, or other thing used upon said railroad or in the operation thereof, or which may result from, or be caused by an employé, agent or servant of such corporation, company or person upon or in the operation of such railroad." And the owner of any such property may recover all such damages, and upon the trial of any suit for such damages "it shall not be lawful for the defendant in such suit or action to plead or

prove as a defense thereto that the fire which caused such injury was not the re

part of such defendant, its employés, agents or servants; but in all such actions, it shall only be necessary for the owner of such property so injured to prove that the fire which caused or resulted in the injury originated or was caused by the operation of such railroad, or resulted from the acts of the employés, agents or servants of such defendant." Act 141, Acts of 1907, p. 336, § 1.

WOOD, J. Appellant instituted this suitsult of negligence or carelessness upon the against the appellees to recover for damages to his property, alleging, among other things, "that on September 21, 1916, the servants and employés of the defendants carelessly and negligently kindled a fire on the right of way of said railway company and from said fire so carelessly and negligently kindled the same was negligently allowed to spread and burn and totally consume plaintiff's said property; that if said fire did not spread from the right of way as above alleged, it was carelessly and negligently allowed to be kindled from sparks from one of defendant's trains operated on said railway." The defendants denied the allegations of the complaint as to negligence and set up affirmatively the de

While the language of the act is somewhat involved and ambiguous, yet, when construed as a whole, it shows that it was the intention of the Legislature to make the railway company liable absolutely in damages for injury to or destruction of property caused by such extraordinary hazards as the

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

operation of a locomotive engine, machinery, | mon-law liability for injury and the consetrains, cars, or other things, when used or quent damage caused by their negligence. operated upon the railroad, or by any of their servants or employés in the operation of such machinery upon the railroad tracks, or by the positive affirmative act of the servants or employés of railway companies in the operation of the railroad. The language is sufficiently broad to include such acts as the burning off and clearing up of the right of way or roadbed, or such acts as the building of fires on the right of way or in proximity thereto while engaged in the work of repairing the railway track or roadbed for the operation of trains.

And in Mo. Pac. Ry. Co. v. Cady, 44 Kan. section men while burning off its right of 633, 24 Pac. 1088, the court says:

for instructions, which told the jury, in, Vermont R. Co., 77 Vt. 334, 60 Atl. 137, 70 L. effect, that, if the fire was set out by the R. A. 930. appellees' locomotive engines, or in the operation thereof, or if there was a fire on the right of way which was negligently permitted by the appellees' servants and employés to spread and burn the appellant's property, the appellees would be liable for the damages caused thereby.

[2] II. There was no error in the giving of the appellees' prayer for instruction No. 8A. (Reporter set out in note.) The defense of contributory negligence was set up in the answer, and there was evidence to warrant the court in submitting this issue to the jury, which was correctly done in the above prayer No. 8A.

It is held by the authorities generally that a temporary use of the right of way by permission of a railroad company, not interfering with the public use of the right of way of a railroad, and to end at the will of the railroad company, is not inconsistent with the franchise of the public carrier. See Griswold v. Ill. Cent. R. Co., 90 Iowa, 265, 57 N. W. 843, 20 L. R. A. 647; Grand Trunk Ry. Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356.

While there was testimony to the effect that the owner of the mill plant had abandoned, for some years, the manufacture of lumber, and also to the effect that the railway company had severed the switch connections with the mill plant, this testimony was not sufficient to show that the parties to the contract had abandoned the same. The

[3, 4] III. The court, over the objection of the appellant, permitted the appellees to introduce a lease contract with the appellant, by which the railway company agreed to al-contract itself prescribed the terms upon low the appellant to build a portion of his mill plant upon the appellees' right of way, and in consideration of the reduced rental which appellant was required to pay to the railway company appellant agreed to "waive, release, relinquish and abandon" any and all claims or rights of action which he might otherwise have by reason of loss or damage to buildings or other property of the leased premises by fire, arising from the operation of the railway over and upon or near said premises, "whether said fires be caused by sparks from locomotives of said lessor or in any other manner while this lease continues in force." The contract contained a provision that:

"The term shall commence on the day first above written and shall continue until thirty days after either said lessor, its successors or assigns, or said lessee shall serve written notice upon the other party of the desire to terminate this lease."

There was a further provision that: The "lessee further agrees upon the termination of this lease to remove from the leased premises all buildings and other improvements erected by lessee thereon and to restore the surface of the ground to the same condition as before said buildings were erected and the improvements made."

The undisputed evidence justifies the inference that this lease, on account of the low rental, was entered into on the part of the railway company in order to promote as a common carrier. There is no testimony to show that the use which the lessee made of the property could in any manner interfere with the duties which the

its business

carrier owed the public to transport freight and passengers.

"A railroad corporation holds its station grounds, railroad tracks, and right of way, for the public use for which it is incorporated, yet as its private property, and to be occupied by itself or by others in the manner that it may consider best fitted to promote, or not to interfere with, the public use. It may, in its discretion, permit them to be occupied by others with structures convenient for receiving and delivering freight upon its road, so long as a free and safe passage is left for the carriage of freight and passengers." Osgood v. Central

which the parties to it might terminate it; that is, by written notice served upon the opposite party 30 days before the termination of the contract. There is no evidence to show that the contract was terminated in this manner. As the lease provided that when the same was terminated the lessee was to remove from the leased premises all the buildings and other improvements that had been erected thereon by him, and since these improvements had not been removed, the presumption would be that the lease contract had not been terminated or abandoned. The court was correct in treating the rame as in existence, and in permitting the same to be read in evidence.

[5] IV. Witness Armstrong testified, over the objection of appellant, that he saw forest fires along through the woods about half a mile from where appellant's mill was lo|cated, and on the same side of the track that the switch and mill were on; that the woods were unbroken from where he saw the fires to the mill; that he passed there about 11:30 o'clock a. m. before the fire occurred. The fire occurred something after 1 o'clock in the afternoon. The fire was running along burning the leaves and grass and stuff on the ground. Lots of tree tops were lying around there, and the fires were burning up into them. There was heavy smoke all along through that part of the country, between Britt's and the Little Missouri river. river was south, towards Texarkana, from Britt's.

The

Other witnesses testified that there was a

high wind blowing from the direction where

the fire was seen in the woods towards the mill plant. It was in the fall of the year and very dry.

This testimony was competent. It was a question for the jury to determine, from this evidence, in connection with the other evidence, as to the origin of the fire that caused the destruction of appellant's property. It cannot be said that this testimony was too remote to throw any light upon the origin of the fire. It cannot be said that it was

physically impossible for the fire which Arm- [ which Shapard, for the consideration menstrong discovered in the woods to have been transmitted by the high winds through the combustible material intervening to the mill plant of appellant. The appellees were entitled to have all the testimony that would tend to shed light upon the probable origin of the fire go before the jury, whose sole province it was, under the circumstances, to determine that issue.

(Supreme Court of Arkansas. Feb. 18, 1918.) described in the deed of trust, and on the

same day filed his claim against the Maynard estate in the probate court of Lee county, verified as required by law. On December 11, 1916, the claim was disallowed by the probate court, and an appeal was taken to the circuit court. In the circuit court the causes were consolidated by agreement, and the issues were sent to a jury.

the note and mortgage, and stated that Wilse Kirby testified, admitting the execution of Wooten was the only one present besides him282-FORECLOSURE self and Maynard when the mortgage was ex

Appeal from Circuit Court, Lee County; He then proceeds to testify as to the correctJ. M. Jackson, Judge.