(218 S.W.) solute title was granted to the levee district | ed as part of the transaction for sale by the and the limitations and restrictions set out company to the grantor of houses erected by above are not conditions subsequent. Decree affirmed. CAMERON v. ROBBINS. (No. 132.) (Supreme Court of Arkansas. Jan. 26, 1920. 1. LOGS AND LOGGING 3(15)—ASSERTION OF Where plaintiff conveyed timber to a lumber company to be removed in seven years, and the lumber company agreed that buildings erected by it on land leased from others on expiration of time allowed for removing timber should be left on plaintiff's land and belong to him, and such buildings were erected on land leased from the others under contract stipulating buildings should remain the property of the lumber company, removable at the end of the lease, when a claim to such buildings was asserted by the judgment creditor of the lumber company's successor, plaintiff could assert his rights to them prior to expiration of the time for removal of the timber, title to the buildings, as well as immediate right to possession, being involved, and the buildings not having become part of the realty on which built. 2. FIXTURES 27 (2)-HOUSES ERECTED ON Houses erected by a lumber company on CONCERNING HOUSES WHICH NOT SALE the company whether on the grantor's land or land of another, which houses should be appurtenant to the company's mill plant, a subsequent verbal contract relating merely to the place where the houses were to be built, changing the place to a third person's land, was not a contract for the sale of the houses, which were fixtures, required to be in writing by the statute of frauds. 5. FRAUDS, STATUTE OF ~44(1)—AGREEMENT AS TO LOCATION OF HOUSES TO BE ERECTED Where the grantor of timber to a lumber company and the company in writing contracted for sale by the company to the grantor of houses erected by the company, whether on the grantor's land or land of another, a subsequent oral contract relating merely to the place where the houses were to be built, changing it to a third person's land, was not within Kirby's Digest, § 3654, subd. 6, the statute of frauds relative to agreements not to be performed in a year. Appeal from Circuit Court, Union County; Turner Butler, Judge. Shackelford, resulting in judgment for plainAction by D. N. Cameron against F. H. tiff, who levied process on certain property to satisfy the judgment, and H. F. Robbins intervened. From judgment for the intervener, plaintiff appeals. Affirmed. Geo. M. LeCroy, of El Dorado, for appellant. Neil C. Marsh, of El Dorado, for appellee. MCCULLOCH, C. J. The facts in this case are undisputed. Appellee owned a tract of timber land in Union county, and conveyed the timber by deed to the Hardwood Dimension Lumber Company; there being a stipulation in the deed that the timber should be removed expeditiously within a period of time not exceeding seven years, and that the grantee should erect a sawmill on the land for the purpose of manufacturing the timber into lumber. A few months subsequent to the execution of the timber deed, and when the lumber company was about to begin performance, it was found desirable to erect the mill and the appurtenant houses and other buildings just across a creek from appellee's tract of land on another tract owned by one Culpepper, it having been expressly agreed between appellee and the lumber company that the buildings should be left on appellee's land at the expiration of the time allowed for removing the timber and thus become the property of appellee, and an additional written contract was then entered into between appellee and the lumber company whereby it was agreed that the houses to be built on Where the grantor of timber to a lumber the Culpepper land should at the expiration company and the company in writing contract- of the lease become the property of appellee Where houses were erected by a lumber company on leased land under contract with the lessor that they should remain the property of the company as trade fixtures, not being a part of the realty, the statute of frauds concerning the sale or lease of lands did not apply to the agreement between the lumber company and the grantor of timber to it that on expiration of the time for removal such houses, though not on the grantor's land, should belong to him; the only statute applying being that relating to the sale of chattels, which is Kirby's Digest, § 3656. 4. FRAUDS, STATUTE OF 72(4)—AGREEMENT BETWEEN LUMBER COMPANY AND GRANTOR OF TIMBER AS TO LOCATION OF FIXTURE HOUSES NOT CONTRACT OF SALE OF HOUSES. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the same as if the houses had been built as originally intended on appellee's land. The lumber company leased the land from Culpepper under a written contract which stipulated that the houses built on the land should be and remain the property of the lessee and removable at the end of the lease. Subsequently it was found necessary for the lumber company to lease an adjoining tract of land from one Wysinger to build houses on, and a contract was entered into between the lumber company and Wysinger whereby Wysinger leased the land to the lumber company with a stipulation concerning the removal of the houses similar to that contained in the Culpepper contract. There was a verbal agreement between appellee and the lumber company with respect to the houses to be built on the Wysinger land to the effect that they should become the property of appellee in accordance with the original contract concerning the construction of the mill plant on the land of appellee. The lumber company, after putting the mill into operation and building numerous houses on the Culpepper and Wysinger lands to be used in connection with the mill plant, sold the mill machinery conditionally to Mrs. Josephine Shackelford, and transferred the leases from Culpepper and Wysinger. Mrs. Shackelford subsequently assigned her interest to her husband, F. H. Shackelford. Appellant is a judgment creditor of Shackelford, and caused process to be levied on the houses on the Culpepper land and on the Wysinger land for the purpose of obtaining satisfaction of the judgment. Appellee intervened, and the controversy arises over the priority of their rights in and to these houses which were constructed on the lands afore said. the mill under his purchase from the lumber company. [2, 3] The next contention is that appellant's contract, at least as to the houses on the Wysinger land, is within the statute of frauds and void. The contract between Wysinger and the lumber company, as well as the Culpepper contract, was in writing, and, according to its terms, the houses were to remain the property of the lumber company as trade fixtures. The houses never became a part of the realty, but remained the personal property of the lumber company, which, were, under the contract with appellee, to pass to the latter. Now, the contract between appellee and the lumber company with respect to the houses on the Culpepper land was in writing, and there can be no question of the statute of frauds being involved in the controversy concerning those houses. The only question that arises on that subject relates necessarily to the houses on the Wysinger land. Those houses not being a part of the realty, the statute of frauds concerning the sale or lease of lands does not apply. The houses constituted personal property, and the only statute which could, under any circumstances, apply, would be that which relates to the sale of chattels. Kirby's Digest, § 3656. [4] The verbal agreement between the lumber company and appellee did not, however, constitute a contract for the sale of the houses. The original contract in writing between the parties provided for the sale of the houses which were appurtenant to the mill plant, and the verbal agreement referred to merely concerned the change of the contract from building the houses on appellee's land or on the Culpepper land to building some of them on the Wysinger land. The verbal contract, [1] The time for removal of the timber had in other words, relates merely to the place not expired, and the first contention of appel- where the houses were to be built, instead of lant is that appellee's assertion of the right a contract with respect to the ownership of to the houses is premature. It is true that the houses themselves at the time of the exappellee could await the time of the expira-piration of the lease; for, according to the tion of the timber contract and then remove original contract, the houses were to become the houses as against the claims of all per- the property of appellee. That part of the sons, but he was not bound to do so when a contract not in writing was one which was conflicting claim was asserted by another per- not within the statute of frauds. son. The houses have not become a part of the realty on which they were built, but remain the personal property of the builder pursuant to the contract which reserved the right to remove them as trade fixtures. The title, as well as the immediate right to possession, is involved in this controversy, and appellee can assert his rights now. If the property belonged to appellee, it is not subject to execution under a judgment against Shackelford; for the latter had, at most, only a right to occupy the houses while operating [5] The same answer may be given to the contention that the case falls within the clause of the statute which provides that a "contract, promise or agreement that is not to be performed within one year" must be in writing. Kirby's Digest, § 3654, subd. 6. We are of the opinion, therefore, that the facts being undisputed, and the principles of law being favorable to appellee's claim, the court was correct in giving a peremptory instruction. The judgment is therefore affirmed. (218 S.W.) Declaring the law applicable to a contract of that character, the court gave the following instruction: "No. 1. You are told that if you find from a preponderance of the evidence that the plaintiff worked as salesman for the defendant under an agreement that he should receive 6 per cent. commission on all goods sold by him when the orders were accepted by the defendant and shipped by them, and that the defendant accepted the orders, then they had no right to arbitrarily refuse to ship the goods, and if you believe that they refused to ship the goods for the reason that the price advanced, and in order to sell the goods at a higher price, and that they did have the goods to fill such accepted orders, and did not fill the orders taken by plaintiff and accepted by them, because they could and did sell them for a higher price, your verdict should be for the plaintiff for 6 per cent. commission such accepted orders not filled for the reason stated." Appeal from Circuit Court, Nevada Coun-on ty; Geo. R. Haynie, Judge. Suit by L. B. Jones against the Star Clothing Manufacturing Company. From judgment for plaintiff, defendant appeals. Affirmed. W. P. Murrah, of Prescott, for appellant. lee. SMITH, J. This is a suit by an agent to collect commissions for effecting sales of merchandise. The plaintiff recovered judgment, and the defendant has appealed. The testimony shows that plaintiff took numerous orders for goods in the territory in which he traveled, which were forwarded to and accepted by defendant, and portions of most of these orders were filled, but that the price of the goods sold advanced rapidly and considerably after the orders therefor had been taken and accepted and defendant ceased filling the orders. It was shown that later orders placed at the advance prices were promptly filled. The suit was defended upon two grounds; the first being that the goods in question were required to fill government orders for military purposes, but that defense was submitted under an instruction which told the jury to find for the defendant if the failure to fill orders was due to that fact, so that that defense has passed out of the case. The second defense, and the one which presents the controlling question, is that defendant became liable for the agent's commissions only when it had accepted orders and had shipped out the goods filling the orders. This instruction was given over defendant's objection and instructions asked by defendant were refused which declared the law to be that defendant had the right to reject any orders or parts thereof up to the time the goods were to have been sent, and that defendant was liable only for the commissions on goods which were shipped. The testimony is undisputed that the or ders were accepted, and on conflicting testimony the jury has found against defendant's explanation of its failure to fill them. Certain orders transmitted by plaintiff were turned down by defendant's credit department, and no commission is claimed on these orders. We think a fair construction of this contract is that defendant had no right to arbitrarily refuse to fill plaintiff's orders, and that it was arbitrary to do so because of an advance in the price over that at which he had been authorized to sell and had sold. The provision of the contract that the commission should be earned upon the shipment of the goods determined when the commission had been earned, and it must necessarily be assumed, in the absence of proof to the contrary, that the parties contemplated shipments would be made in the usual and ordinary course of business, unless some valid and sufficient reason appeared for not doing so, such as the rejection of the order by defendant's credit department. The testimony is that plaintiff devoted his whole time to his agency, and incurred considerable personal expense in traveling over the territory in which he took the orders, for The contract out of which this controversy all of which he expected compensation out of arises was an oral one, yet there is no sub- his commissions. So that in the absence of a stantial difference in the statement of its stipulation that defendant might accept or terms by the parties thereto. The agent was reject such orders as it pleased, for any reato receive 6 per cent. commission on all or- son satisfactory to itself, we must approve ders booked, accepted, and shipped which the construction placed upon the contract in were received from him, and 3 per cent. when the instruction set out above, to the effect mail orders were received from his territory. that defendant had no right to arbitrarily For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes refuse to ship the goods, and that it was arbitrary to do so because of the advance in price. In the case of Taylor v. Enoch Morgan's C. Knox, Asst. Atty. Gen., for the State. Sons' Co., 124 N. Y. 184, 26 N. E. 314, the Court of Appeals of New York, in an opinion by Haight, J., had occasion to construe a contract in which the agent's commission was to be paid “upon all orders accepted from bona fide purchasers." The contention was there made that the principal became liable to the agent for the commission only upon such or ders as it accepted, and that it would not be liable for commissions on orders which, for Charley Payne was convicted of manslaughter, and he appeals. Affirmed. Jno. D. Arbuckle, Atty. Gen., and Robert reasons satisfactory to itself, it had declined to fill. In disposing of that contention it was there said: "We incline to the view that it was the duty of the defendant to accept all orders presented by the plaintiff from bona fide purchasers which were made in accordance with the provisions of the contract, and that they did not have the right, without cause, to arbitrarily refuse to accept such orders. Such a construction of the contract would require the plaintiff to travel over the territory mentioned at his own expense six times a year with a right on the part of the defendant to reject every order presented by him, and to thus deprive him of any commissions." To the same effect see, also, Wolff v. Sacks, 184 Mo. App. 157, 168 S. W. 641; Abel v. Nelson, 104 N. Y. Supp. 362; Stone v. Argersinger, 32 App. Div. 208, 53 N. Y. Supp. 63, 65; Jacquin v. Boutard, 89 Hun, 437, 35 N. Y. Supp. 496, 500; Madden v. Equitable Life Assur. Soc. of the U. S., 11 Misc. Rep. 540, 32 N. Y. Supp. 752, 756; In re Ladue Tate Mfg. Co. (D. C.) 135 Fed. 910, 911; Castleman v. Lewis (Tex. Civ. App.) 183 S. W. 1182. Judgment affirmed. MCCULLOCH, C. J. Appellant was tried under an indictment charging murder, and was convicted of manslaughter. The charge in the indictment is that appellant killed one The only question presented on this appeal Joe Gardner by shooting him with a pistol. is whether or not the testimony was suffi cient to sustain the verdict. killed Joe Gardner. The killing occurred in It is undisputed that appellant shot and the daytime out in a cotton field where appellant was picking cotton. There were several of the witnesses in the case present at the time of the killing who testified concerning the details. Appellant himself testified in the case and admitted that he shot and killed Joe Gardner, but contended that he did so in self-defense. Appellant and Joe Gardner were both negro farmers in St. Francis county. Gardner had a woman living with him as his servant and concubine, and he conceived the idea that appellant was having improper relations with the woman and was trying to take her away from him. Gardner's shoes were taken from the house, and he also concluded that appellant had stolen the shoes. The two men engaged in a controversy, according to the testimony of one of the witnesses, a few days before the killing, and in that controversy appellant threatened to kill Gardner. On the day of the killing appellant and other cotton pickers were out in the field picking cotton, and Gardner walked out through the field, and there was a conversation between the two men before the shooting occurred. One of witnesses introduced by the state testified that he was present in the cotton patch when the shooting occurrred, and that all that was said between the two men was that Gardner said to appellant, "Haven't I treated you right?" and that appellant replied, "Yes," whereupon Gardner stepped back and said, "I am a man just like you," and ran one of his hands inside the bib of his overalls, and that appellant then fired the shot which struck Gardner in the breast and killed him. Gardner ran a short distance and fell and died in an hour or two. Appellant fled as soon as he fired the shot, and, according to his own statement on the witness stand. "didn't stop running until he got down somewhere in the state of Mississippi." Appellant testified that Gardner had threatened he renewed the threat and made an effort to to kill him, and when he walked up that day draw a pistol. Other witnesses testified to the same effect. There was testimony introAppeal from Circuit Court, St. Francis duced by appellant that Gardner had a pisCounty; J. M. Jackson, Judge. tol, but there was no testimony that Gard PAYNE v. STATE. (No. 148.) (Supreme Court of Arkansas. Feb. 2, 1920.) 1. HOMICIDE 151(1)—Defendant HaS BURDEN OF PROVING CIRCUMSTANCES OF MITIGA TION. Under Kirby's Dig. § 1765, the killing being proved and admitted, it devolved on defendant to prove circumstances of mitigation justifying or excusing the homicide. 2. HOMICIDE 244 (1)—EVIDENCE WARRANT ING FINDING THAT DEFENDANT SHOT WITH- In a prosecution of one negro for murder of another, resulting in conviction of manslaughter, evidence held sufficient to warrant finding that defendant shot deceased without sufficient justification, and not, as he testified, under reasonable belief of great bodily harm from deceased. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) 154(1) ner drew the pistol or that any witness saw | 4. FRAUDULENT CONVEYANCES FAILURE TO RECORD DEEDS NOT CONCLUSIVE [1] The killing being proved and admitted, it devolved on the accused to prove "circumstances of mitigation that justify or excuse the homicide." Kirby's Digest, § 1765. [2] The evidence was sufficient to warrant the finding that appellant shot without sufficient justification. Of course, if appellant's own testimony had been accepted as true, it would have justified the finding that Gardner was making a hostile demonstration so as to induce the belief in the mind of appellant that he was in danger of great bodily harm, but, according to the testimony of one of the witnesses, this was not true. The jury could have found from the testimony of one of the witnesses that Gardner's thrusting his hand into the bib of his overalls was not a hostile act, and that appellant was not justified in shooting him. Proof of threats made by appellant and also his flight were important circumstances for the jury to take into consideration in determining the motives of appellant and the effect of the circumstances immediately attending the killing. The mere fact that a debtor did not record a deed to him of land, and that his wife and son did not record deeds from him, is not of itself such sufficient evidence of an intent to defraud creditors as to constitute fraud in law, being only a circumstance tending to impeach the want of good faith of the parties. 298 (3) 5. FRAUDULENT CONVEYANCES In an action against an insolvent husband and wife and son to set aside conveyances of land to the wife and son alleged to have been made to defraud creditors, evidence held to sustain chancellor's finding in favor of defendants. Appeal from Cleburne Chancery Court; Lyman F. Reeder, Chancellor. Suit by M. M. Irwin, doing business as the Heber Hardware & Furniture Company, against J. E. Dugger and others. Decree for defendants, and plaintiff appeals. Affirmed. M. M. Irwin, doing business as Heber Hardware & Furniture Company, brought this suit in equity against J. E. Dugger, Sarah C. Dugger, and M. G. Dugger, to set aside certain deeds which it is alleged J. E. Dugger exe There was abundant testimony, we think, cuted to his codefendants in fraud of the to sustain the verdict. Judgment affirmed. IRWIN v. DUGGER et al. (No. 157.) (Supreme Court of Arkansas. rights of his creditors. The facts, so far as are necessary to test the correctness of the decision of the chancellor, are substantially as follows: On the 15th day of March, 1917, the North Arkansas Townsite Company executed to J. E. Dugger a deed to lot 1, in block 14, in the town of Miller, Ark. The consideration in Feb. 2, 1920.) the deed was $100, and this was the true consideration. $25 was paid in cash, and the 1. APPEAL AND ERROR 1009 (4)-FINDINGS balance was to be paid in deferred payments. OF CHANCELLOR NOT REVERSED UNLESS AGAINST PREPONDERANCE OF EVIDENCE. Findings of fact made by a chancellor will not be reversed on appeal, unless they are against the preponderance of the evidence. 2. FRAUDULENT CONVEYANCES 104(1), 278(2)-BURDEN ON WIFE TO SHOW GOOD FAITH IN TRANSACTIONS WITH HUSBAND. Transactions between a husband and wife affecting the rights of creditors, especially where the husband is insolvent, are to be scrutinized with care in passing upon the question of good faith, and the burden is upon the wife to show her good faith. 3. HUSBAND AND WIFE 129 (4)-WIFE NOT A wife who allows her husband to use her property for a long time as his own land will not be allowed to claim it as against his creditors. This deed was not filed for record until the 14th day of December, 1918. At the time J. E. Dugger purchased the lot, it was under stood that he would sell the west 50 feet of it For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |