in amicable suits of this character should, [sion. Thereafter they were represented by we think, be limited to those cases where their own counsel, and there is no reason the services of the plaintiff's solicitor, not why, in addition to this, they should be taxonly result in benefit to the whole subject-ed with any portion of the fees of the solicimatter of the litigation, but are accepted tor of appellees. It cannot be said, under and acquiesced in by the other parties. The those circumstances, that they ever accepted rule does not apply where all of the parties the benefit of the services of appellees' soappear by their respective solicitors and the licitor, for they were represented by their proceedings are conducted through their own solicitors in every step of the proceedjoint efforts. The true rule which should ings. govern in these cases is, we think, stated by We are not to be understood as holding the New Jersey court as follows: "The or- that, where one or more tenants in common der for the allowance is frequently based brings suit against the other tenants in comon the consent of parties or on the state- mon for partition, and there is no appearment that the parties concur in the allowance or resistance, the proceedings resultance. Where this is the case, or where the ing in an amicable partition of the property, proceeding is in fact amicable and in be- the fees of the plaintiff's solicitors should half of all the parties interested, the pro- not be taxed against all the parties. That priety of the allowance is manifest. The question does not arise in this case under aid of counsel is necessary to investigate ti- the facts as before related. But even in tle, to examine conflicting claims, and to con- that sort of a case, if the fees are taxable, duct the cause. Where the defendant con- they can only amount to such sum as the curs in the proceeding, there is no reason solicitor can appropriately charge his own why the complainant should be compelled to client, and not the fee he might have charg bear this part of the expense more than ed if employed by all of them. Bradshaw any other. In such case the complainant's v. Bank of Little Rock, 76 Ark. 501, 89 S. counsel represents the interests and protects the rights of all the parties. All are presumed to be equally benefited by the proceedings. But the complainant's claim to partition may be resisted. The proceedings may be hostile, or, if not hostile, the defendants may employ their own counsel, and by answer seek to protect their interests. If the plaintiff's title is disputed, or the partition opposed upon any ground unsuccessfully, the defendants will be compelled to pay costs. And if no opposition is made to the partition, and the defendants choose to employ their own counsel, why should they be compelled to pay the counsel of the complainant? If the complainant is entitled to an allowance for counsel fees, why not the defendants also? As the proceeding in this case is not amicable, and as the claim for counsel fees is resisted by the defendants, it must be denied." Coles v. Coles, 13 N. J. Eq. 365.

W. 316. "The object of the allowance," said this court in the above-cited case, "is not to give the attorneys a larger fee than they might have recovered from their own clients, but to shift the burden of the charge from them and place it upon the creditors of the bank generally. The inquiry, then, is: What would have been a reasonable charge against their own clients for the services performed?"

Our conclusion, therefore, is that it was improper to tax any attorney's fees against appellants, and the decree of the court in that respect is reversed, and the allowance stricken out. It is so ordered.

WALES-RIGGS PLANTATIONS v. DYE. Dec. 2, 1912.) (Supreme Court of Arkansas. 1. PRINCIPAL AND AGENT (§ 123*)—AGENCY -EVIDENCE.

Evidence, in an action to charge one with the price of goods bought by another, held insufficient to show apparent or ostensible authority to buy them on its account.

and Agent, Cent. Dig. §§ 420-429; Dec. Dig. [Ed. Note. For other cases, see Principal § 123.*]

2. PRINCIPAL AND AGENT (§ 123*)—AGENCY -EVIDENCE.

Authority of an agent cannot be proved by the mere fact that the one claiming the power has exercised it, but the person to be charged as principal must be shown to have assented to the act.

Now, either of the rules above stated excludes the right of the appellees to have their solicitor's fee taxed as a part of the expense of the proceeding. Appellants promptly appeared in the action with their own solicitors to represent them, and thereafter took part in the proceedings; the same becoming to some extent adversary. Up to the time of the appearance in the case it cannot be said that the proceedings were amicable, for it could not be told, until the appearance day passed, whether the same would be amicable, or whether they would thereafter be adversary. As a matter of fact, in this case the proceedings did become to some extent adversary, for appel- Appeal from Circuit Court, Cross County; lants denied the right of partition in kind, S. R. Simpson, Special Judge. and asserted that the lands could not be Action by the Wales-Riggs Plantations equitably divided and should be sold for divi-against I. R. Dye. From a judgment for For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. § 123.*]

Ark.)

WALES-RIGGS PLANTATIONS v. DYE

defendant on a set-off, plaintiff appeals. Re- | tracts, buying feed, selling stock, and selling versed and rendered.

The facts are as follows:

land, and I just supposed she had the right
Cross-examina-
to charge things to them."
tion: "When Capt. Riggs was in my town,
Parkin, 1907 or 1908, this Mrs. Cross was
with him and appeared to be treated as one
of the family. He ran an account at my

sued on.

At the time

Chas. E. Robinson, of Wynne, for appellant. S. M. Wassell, of Little Rock, for appellee. HART, J. Appellant commenced this suit in the justice court against appellee to recover upon two promissory notes. The ap-store which he finally paid by receipting one pellee admitted liability on the notes, but of this same series of notes, one of which is While he was there at that time, filed a set-off, in which he claimed that appellant was due him an amount over and Mrs. Cross came to the store to get goods above that due by him upon the notes for several times; sometimes with an order; The goods were furgoods and merchandise sold by him to Mrs. sometimes without. nished her just as they would be to the memG. K. Cross for appellant. Appellee recovered judgment against appellant in the jus- ber of any other man's household, and they were charged to him. This is the reason, tice court on his set-off, and the case was appealed to the circuit court. There appellee when she came there again and wished to again recovered judgment, and the case is buy goods, I sold them to her and charged them to C. W. Riggs by her. here on appeal. Capt. Riggs was in Parkin, when he ran a bill at my store he was in the show business, and was in Parkin in winter quarters with his show. This account that I have filed as a counterclaim has never been paid and is past due. It amounts to $149.17. I never did send the company or Capt. Riggs a statement of the account to let them know that the goods were being charged to him. After she had run quite a bill, she came and insisted on my taking her personal note for the goods bought, and I reluctantly took it. Later she gave me another note when she had bought more goods. I have these notes now at home. They have never been paid. I said to her that I was owing the company and that we could settle it that way. I did not take the notes as a settlement releasing the Wales-Riggs Plantations Company from the debt due me.

C. W. Riggs testified: "I am president of the appellant corporation, and have been since its organization. The amount due appellant by appellee on the first note sued on was $5.25 on August 5, 1909, and on the second note $50 was due on July 1, 1910. Both of these sums are due and unpaid. On November 18, 1909, appellant entered into a written agreement with Mrs. G. K. Cross by which she became its agent in Cross county for certain specified purposes, which were She had no power set out in the contract. to make a contract for us, but could only talk over contemplated contracts and present them to us for our approval. She never had any authority to make any contract for us, and I never gave her any authority whatever to use our credit, and never agreed with her or any one else to pay her debts, except in one instance, when she was taken sick on the Love place, which she had rented from us. On that occasion we received a letter that she was sick and needed assistance. We wired back that we would pay any one for taking care of her during her sickness. We never knew that she bought goods from the appellee and had same charged to our account, and never gave her any authority to buy goods from appellee and charge them to us. Mrs. Cross never had any authority to collect money for our company, except one time she was given authority to collect $10 on a horse sold. At another time she collected $25 and gave the company's receipt therefor. This was done without authority, but, owing to the distress she was in at the time, we ratified her action."

One of the series of notes to which the notes sued on belongs fell due after I had furnished these goods to Mrs. Cross and charged them to Capt. Riggs, and when the bank notified me the note was due I paid it. I did not then mention to the company the fact that I had anything against it, but paid the note in money."

J. H. Hammett testified: "I was levee tax collector in 1908, and Mrs. Cross paid the levee taxes that year for Wales-Riggs Plantations. The next I knew of her was in the fall of 1909, after I had moved from Wynne to Earle. She had desk room in my office. I had a letter from Capt. Riggs saying she was general agent of the plaintiff, and she acted like it in every way, making contracts, drawing them and signing them, renting land, selling stock, and so on."

On rebuttal Mrs. G. K. Cross testified: "In the spring of 1909 I was agent for appellant company to show its lands and stock and submit to the company any propositions or offer of rentals that might come up. I had no authority whatever to close up contracts. The goods I bought from Mr. Dye were to be charged to me and were not for the appellant I was not the agent of the com

I. R. Dye, appellee, testified: "The plaintiff company owes me $149.17 for supplies furnished to Mrs. G. K. Cross bought from February to June, 1909, from me at my store in Parkin. I charged the goods to C. W. The plaintiff Riggs by Mrs. G. K. Cross. company never told me to furnish her goods, nor promised to pay for any she got; but Mrs. Cross came there and took an oversight company. over the affairs of the company, making con-pany at that time. I was farming land which

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Under the facts of the present case, the defendant, Bobo, aided Russell in making the sale of the whisky to Mulkey, and thereby became a principal in the offense. Mulkey did not know that Russell was engaged in the illegal sale of whisky. He came into the restaurant where Bobo was working and asked him if he could get him any whisky, and gave him money to pay for it with. Bobo went out and got the whisky from Russell, and came back and delivered it to Mulkey.

whisky, but that he only made out an order | it, and yet not have any interest in the thing for whisky to persons in St. Louis dealing that was being sold. The distinction is clear, in liquors for the person to whom he was and it is vital." charged with selling the whisky. The persons in St. Louis were licensed liquor dealers. The court held that if the defendant in that case did nothing more than order liquor for another person from this firm that he was not guilty. This was because the persons in St. Louis were authorized to sell liquors, and the law did not prohibit any one from buying from them. This was but an application of the well-known rule of agency; that is to say, that which a man may legally do himself he may also do by an agent. The facts in this case are essentially different, and we think the present case is controlled by the principles of law announced in the case of Foster v. State. 45 Ark. 361. In that case Foster was indicted for selling liquor to a minor. The proof was that Foster took the money of the minor and purchased the liquor for him at a saloon in which he was not interested, and delivered the liquor to the minor. The court said that Foster was not the actor in making the sale to the minor, and to this extent was not within the language of the statute, which prohibited the sale of whisky to minors. The court held, however, that following the rule of the common law all persons concerned in the commission of a crime less than a felony, if guilty at all, are principals, and that Foster was guilty because he aided and abetted the liquor seller, which was the offense prohibited by the statute. The court said: "However men combine, each one is criminally responsible for what he personally does, ** for the whole of what he assists others in doing, and for all that the others do through his procurement. Bish. St. Cr. § 1024. The appellant had the evil design of procuring a sale of liquor to a minor, and his act directly and immediately led to the commission of the offense. This made him a principal in the offense."

In the application of this rule in the case of Dale v. State, 90 Ark. 579, 120 S. W. 389, the court said: "It has often been ruled that one who aids another in the sale of whisky contrary to law is guilty as a principal offender, no matter what subterfuge is resorted to, or what means are employed to accomplish the sale."

On cross-examination he was asked, "How come you to know where to get that whisky?" To which he answered: "The man that was selling it had been around there, and told me that if I wanted any he had some for sale, and told me where to find him at." We quote further from his cross-examination, as follows: "Q. How come this man coming around up there telling you he had whisky to sell, and you could get some any time you wanted to? A. Well, I guess he knew that I was in a public place- Q. In fact, he asked you to turn everything you could his way? A. No, sir. I bought it for myself before Q. Well, he told you that if anybody come around there that wanted whisky you could get it, didn't he? A. No, sir. He just told me I could get some if I

wanted it."

While Bobo says he procured the liquor from Russell at the request of Mulkey, with money furnished by him for the purpose, still he admits that Russell was not known to the buyer, and had told him that he had liquor for him whenever he wanted it. This shows that Bobo was a necessary factor in making the sale, and that he acted for the seller as well as the buyer, and as such intermediary, he was interested in the sale of the liquor, within the rule announced in the case of Dale v. State, supra, and became thereby a principal offender.

The judgment will be affirmed.
MCCULLOCH, C. J., concurring.

LAY v. BROWN et al. (Supreme Court of Arkansas. Dec. 2, 1912.) VALIDITY 1. CONTRACTS (§ 130*) RESTRAINT OF BIDDING AT EXECUTION SALE. An agreement by the holder of a judgment against a decedent's estate that as to certain land the judgment should be enforced only as to a one-half interest, whereas a twothirds interest might have been subjected in of decedent's widow's interest, would not bid consideration that the other party, an assignee at a sale under such judgment, was not invalid as being against public policy; no other attempt to restrict competition at the sale being

Again the court said: "One might be interested in the sale and aiding the seller, and yet have no interest in the whisky be ing sold. One might be employed by another to assist him in making a sale, and act as his agent in making the sale of a commodity, and yet have no interest whatever in the thing being sold. He might be interested in the proceeds of the sale, or interested in making the sale because of some pecuniary or other benefit that he expected to reap from

shown.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 654-658; Dec. Dig. § 130.*]

FICIENCY.

2. CONTRACTS (§ 71*)-CONSIDERATION-SUF- | value of that interest, brought into court and The judgment creditor's relinquishment of kept subject to appellant's right to recover. right to subject the full two-thirds interest The court held that the agreement as made in the land to her judgment, and the other by the parties should be enforced, and that party's forbearance to bid at the sale, consti- the appellant could not thereafter, in violatuted sufficient consideration to support the tion of her agreement, recover the money

contract.

[Ed. Note.-For other cases, see Contracts, representing the one-sixth interest of said esCent. Dig. §§ 295, 296, 298, 316-324, 327; tate. From the decree denying the relief, Dec. Dig. 8 71.*] this appeal comes.

3. CONTRACTS (§ 71*)-CONSIDERATION-SUFFICIENCY.

A consideration such as will support a contract need not be a thing of pecuniary value or even reducible to money value; waiver of a legal right at the request of another party being sufficient consideration for a promise. [Ed. Note.-For other cases, see Contracts, Cent. Dig. $$.295, 296, 298, 316-324, 327; Dec. Dig. 71.*]

Rice & Dickson, of Bentonville, for appellant. W. D. Mauck, of Bentonville, for appellees.

KIRBY, J. (after stating the facts as above). [1] It is contended for appellant that no such agreement was made as claimed by appellee, and that, if made, it was invalid,

Appeal from Benton Chancery Court; T. being against public policy and without conH. Humphreys, Chancellor.

Action by Clara Lay against Isabell Brown and others. Decree for defendants, and plaintiff appeals. Affirmed.

sideration, and not binding against her. The testimony was sufficient to warrant the finding of the chancellor that appellant agreed to refrain from any further proceeding against W. E. Lynn, a resident of Missouri, died the estate of W. E. Lynn and Sarah Lynn, without children, leaving a widow, and, at so far as this land was concerned, in considthe time of his death, owned certain real es-eration that appellee Robinson would refrain tate in Benton county, Ark. Clara Lay recovered judgment against his estate for $830 and costs. The estate was administered in Missouri and only a portion of the claim paid. Suit was filed on the judgment in Benton county and a decree rendered for the balance due and ordering the sale of decedent's undivided interest in the land. Proceeding under the decree, only an undivided one-half interest in the land was sold by the appellant; it being assumed that the widow was entitled to one-half of the lands of her deceased husband, there being no children, and the statute providing that she shall be endowed with one-third of the real estate only, as against creditors, being overlooked.

S. A. Robinson, one of the appellees, acquired the interest of Sarah Lynn, the widow, in the lands from her heirs and devisee, and claimed to be the owner of an undivided half of the land at the time of the sale. On the day of the sale, under the decree it was claimed that appellant was entitled to subject a two-thirds interest in the land to the payment of her debt, and prior to the sale Clara Lay agreed with the representatives of the owner of the other interest that she would make no further claim against appellee for the one-sixth interest, which she was entitled under the law to have subjected to the payment of her debt if said Robinson, who was present for the purpose of bidding, would not bid at the sale of the land for the payment of her judgment. Appellee Robinson did not bid at the sale, in accordance with the agreement, and the one-half interest sold was purchased by appellant for $300. Later appellant brought this suit to subject the one-sixth interest in the lands to sale. The whole property was sold, and $169, the

from bidding at the sale of the interest in the lands ordered sold for the satisfaction of her judgment against the estate, at which sale Robinson did not bid, and said half interest was purchased by appellant. There is no testimony tending to show that there was any conspiracy to prevent competition at the public sale of the lands, or to stifle bidding, further than as the agreement on the part of Robinson not to bid would have such effect. Without doubt he had the right to bid, and having succeeded to the rights of the heirs or devisees of the widow, Sarah Lynn, in the lands ordered to be sold, which interest, he understood at the time of his purchase, amounted to an undivided half, was at the sale, as he said, for the purpose of protecting his interest by bidding. He did not bid, and the half interest in the lands sold was purchased by appellant at the sale. He refrained from bidding on the express promise of appellant, as the chancellor found, that there would be no further proceeding against the estate of Lynn to subject any greater interest in the lands to the payment of the debt than they already sold. Appellant was aware at the time of making such agreement that another one-sixth interest in the land could be subjected to the payment of her claim.

In Hopkins v. Ensign, 122 N. Y. 144, 25 N. E. 306, 9 L. R. A. 731, the court, reviewing many of the older cases in which a stricter doctrine was announced, said; "The court will now look to the intention of the parties, and if they be fair and honest and the primary purpose be not to suppress competition but to protect their own rights, and there be no fraudulent purpose to defraud others interested in the result of the sale,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes