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JOHNSTON v. PENNINGTON.

Opinion delivered November 4, 1912.

TROVER AND CONVERSION-SUFFICIENCY OF EVIDENCE.-In an action against the chief of police of a city for unlawfully converting plaintiff's animals to his own use, proof that the animals in question were impounded by another, without defendant's knowledge, is insufficient to show a conversion by defendant. (Page 280.)

SAME

JUSTIFICATION UNDER IMPOUNDING ORDINANCES-BURDEN OF PROOF. One who would justify the taking and conversion of another's animals under an ordinance for the impounding of animals has the burden of proving that the ordinance has been strictly complied with. (Page 280.)

TRIAL ABSTRACT INSTRUCTION.-An instruction not based upon evidence is prejudicial error where it is calculated to confuse and mislead the jury. (Page 280.)

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

J. I. Pennington brought this suit in the circuit court against Sid Johnston and John B. Williams for the conversion of two horses of the value of $125.

"I

The plaintiff in his own behalf testified as follows: am the owner of the two horses involved in this controversy. On the 4th day of February, 1910, they strayed from my place at Greenwood, Sebastian County, Arkansas. About the 16th day of February I called up over the telephone the defendant Sid Johnston, who was chief of police of the city of Fort Smith, Arkansas, and a person answered the 'phone, and said his name was Sid Johnston. I described the horses to him, and asked him if they were in the pound at Fort Smith, and he answered no, and said no such horses had been there. He said they did not have any horses up then. Some time about the first of May I was in Fort Smith, and asked the defendant Williams if he had seen my horses and described them to him. He replied that he had not. I soon found my roan horse, and on talking to Williams again he stated that the horses had been impounded and had been sold. Williams was employed by the city to keep horses that had been impounded."

Cross Examination: "When I talked to Sid Johnston over the telephone, I did not know his voice, but when I was in Fort Smith in May I asked him if he remembered talking to me about the 16th day of February in regard to some horses, and he replied that he remembered it, said that he remembered having a conversation about that time with a man who said his name was Pennington."

Other evidence was introduced by the plaintiff tending to corroborate his testimony. The ordinance of the city of Fort Smith in regard to impounding animals running at large was read in evidence, and testimony was introduced tending to show that the horses in question were impounded and sold by an order of the police judge of the city of Fort Smith, and that the sale was made by the day captain of police. Sid Johnston, the chief of police, was usually on duty in the night time, and was not present when the horses were sold under orders of the police court.

The jury returned a verdict for the plaintiff in the sum of $75, and from the judgment rendered the defendants have appealed.

Pryor & Miles, for appellant.

1. The court should have directed a verdict in favor of both Johnston and Williams at the conclusion of the evidence. 34 Ark. 431; 10 Ark. 223.

2. The court's instruction, placing the burden upon appellants to show that the ordinance under which they acted was complied with, was erroneous, and especially so as to Johnston because the evidence fails to connect him in any manner with the sale.

3. There was no testimony, either as to Johnston or Williams, upon which to base instruction 4 holding appellants liable if they or either of them purposely or knowingly misled appellee as to the horses being in the pound, etc.

HART, J., (after stating the facts). The ordinance in regard to the impounding of animals in the city of Fort Smith provides that it shall be the duty of the chief of police to sell them under the orders of the police court. The testimony in this case shows that the sale was conducted by the day captain of police, and that the chief of police was not present

at the sale, and, for aught that appears from the record, the chief of police did not know that the sale was to take place or that it did take place. The chief of police being the person designated to conduct the sale, the sale could be made only by him, or at least must be made under his immediate direction and supervision; that is to say, if he were present, he might employ an auctioneer or other person to cry the sale. It follows that there is no testimony tending to show that the defendant Johnston converted the horses to his own use.

It is contended by the defendants that the court erred in instructing the jury that the burden of proof was upon them to show that the ordinance in regard to the impounding of animals had been strictly complied with to justify an action brought against them by the owner of the horses, but their contention in this respect has been determined against them by the principles announced in the case of the city of Fort Smith v. Dodson, 51 Ark. 447.

It is finally insisted by the defendants that the court erred in giving the following instruction:

"If the defendants, or either of them, purposely or knowingly misled plaintiff as to the horses being in the pound, such defendant so purposely or knowingly misleading him would be liable, notwithstanding the ordinances were complied with in the impounding and sale of the horses."

We agree with the defendants in this contention. As we have already seen, there is no testimony in the record upon which to base a verdict against the defendant Johnston. In regard to the defendant Williams, it may be said that there is no testimony tending to show that he made any statement whatever to the plaintiff in regard to the horses prior to the sale. What he said to the plaintiff was said after the sale had been made and after Williams had disposed of the horses. Hence there was no testimony in the record upon which to predicate such an instruction against him. The necessary effect of the instruction was to confuse and mislead the jury, and the instruction is therefore prejudicial.

For the errors indicated, the judgment must be reversed, and the cause remanded for a new trial.

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LITTLE v. ARKANSAS NATIONAL BANK.

Opinion delivered November 4, 1912.

INSURANCE WAGERING CONTRACT.-A policy of life insurance issued to one who had no insurable interest in the life of the person insured, but who pays the premiums for the chance of collecting the policy at the death of such person, is invalid as a wagering contract and against public policy. (Page 283.)

SAME WAGERING CONTRACT-VALIDITY OF PREMIUM NOTE.-A promissory note given for the premium on a wagering contract of insurance is without valid consideration and therefore unenforceable; and such defense is available against an assignee of such note with notice of the facts concerning the consideration, but not against an innocent purchaser for value before maturity. (Page 283.)

EVIDENCE-WRITTEN CONTRACT-ORAL EVIDENCE.-No rule of evidence is violated by admitting oral proof of the consideration of a promissory note for the purpose of showing want or failure or illegality of consideration. (Page 283.)

Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed.

Dick Rice, for appellants.

1. The court erred in sustaining appellee's motion to strike out parts of appellant's answer. If the allegations so stricken out are true, they constitute a defense to the note sued on. 127 S. W. (Ark.) 968; 25 Cyc. 706; Id. 758; 29 Cyc. 117; 22 L. R. A. 291; 135 S. W. 807. The introduction of parol testimony proving such allegations would be no violation of the rule that parol testimony can not be introduced to vary or contradict a written instrument, since this principle does not apply so as to preclude the admission of evidence to show that the consideration was vicious or illegal. 17 Cyc. 660; 8 Cyc. 45; Id. 252-254; Joyce, Defenses to Commercial Paper, § 288; 88 Pac. 708; 62 S. W. 445; 38 N. E. 644; 100 S. W. 796; 36 N. Y. 531; 23 Ark. 390; 25 Ark. 238; 25 Ark. 209; 26 Ark. 450; 32 Ark. 758; 35 Ark. 279; 66 Ark. 534; 41 Ark. 242.

2. The plea of want of consideration is a defense to the notes. 60 Ark. 606; 31 S. W. 567; 6 Ark. 412; Joyce, Defense to Commercial Paper, § 322; Norton on Bills & Notes 275; Tiedeman on Commercial Paper, § 154; Kirby's Dig., § 3690.

B. R. Davidson, for appellee.

1. The third paragraph of the answer was a palpable

effort by the appellants to substitute by parol a contract with the district for an individual contract of their own, ignoring the fact that they had given promissory notes over their own signatures to be negotiated in due course. This can not be done either in law or in equity. 36 Ark. 293; 49 Ark. 285-7; 66 Ark. 445; 67 Ark. 62; 78 Ark. 574-577; 87 Ark. 93.

It is alleged in this paragraph that the notes were illegal and void and contrary to public policy because the district had no insurable interest in the lives of the parties. If proof of this character were admitted to defeat a promissory note, then commercial paper would have no value. 71 Ark. 185-188; 83 Ark. 163-171; 35 Ark. 555-559; 72 Ark. 514.

2. Even if proof, were admissible that this was accommodation paper signed by the parties for the school district, it is no defense. 65 Ark. 543; 65 Ark. 204; 88 Ark. 97.

3. The defense that this is a transaction of a corporation and that it is void as such could only be made by the corporation itself. It is not a party, and, even though the contract itself was ultra vires, appellants could not take advantage of it in this case. 89 Ark. 435-443.

MCCULLOCH, C. J. Appellants executed to one J. O. Gunter two negotiable promissory notes, each for the sum of $837.10, due and payable three and six months, respectively, after date, and Gunter assigned the notes to appellee, a banking corporation doing business in the city of Fayetteville, Arkansas. Appellee instituted this action to recover of appellants the amount of the two notes with interest. Appellants, for defense to the action, pleaded want of valid consideration for the execution of the notes sued on, alleging that Gunter was the soliciting agent for a certain life insurance company; that the notes were executed to him for the first annual premium on life insurance policies issued by said company on the lives of eighteen young men, the amount of the several policies of insurance to be payable on the death of the young men to Special School District of Rogers, Benton County, Arkansas; that neither the school district, nor any of these appellants, had an insurable interest in the lives of the men mentioned in the policies, and that said insurance contracts were void, and, consequently, the said notes given for premiums were without legal consideration. It is further alleged that appellee