to make a sale without incurring liability to er the value of five bales of cotton claimed appellant for a commission. to have been lost in the gin yards of the defendants.

The facts in the two cases being the same, the suits were consolidated and tried togeth er. The plaintiff had five bales of cotton ginned by the defendants, and received from the defendants a receipt for each bale so ginned. It is claimed that these receipts constituted a contract of bailment for hire, and they are the basis of the two suits.

[4] Now, turning to the theory of appellee, under the testimony adduced by him, it was equally plain that appellant was not entitled to recover in the action. Appellee testified that appellant had turned Buzard over to him with the statement that Buzard was appellant's as sociate, and that any arrangement made with him would be satisfactory. The terms of the sale to the Calion Land & Lumber Company and the agreement with reference to the commission on the sale was made with Buz-stituted a contract of bailment for hire, but ard, and appellee paid the commission according to his agreement with Buzard. Under those circumstances, appellant is not entitled to recover the commission. Judgment affirmed.

STRANGE v. PLANTERS' GIN CO. (No. 156.)

The defendants denied that the tickets con

alleged that they were issued solely for the benefit of the customers, for the purpose of identifying their cotton. Peter Davis died, and the suits were revived in the name of a special administrator of his estate.

A. McLane, a tenant on the farm of Peter Davis, carried a bale of seed cotton to the Planters' Gin Company and had it ginned. The gin company issued to him the following receipt:

"Planters' Gin Company. 10-5-17. For A. McLane. Gin No. 229. Weight 580. York,

(Supreme Court of Arkansas. Feb. 2, 1920.) | Weigher."

McLane turned the receipt over to Peter Davis. Four other bales of cotton were carried from the farm of Peter Davis to the gin of the defendants, and after they had been ginned similar receipts were issued, which were also turned over to Peter Davis. After

2. BAILMENT 12-GIN COMPANY PERMIT- the cotton was ginned it was left in the gin

TING COTTON BALES TO REMAIN IN ITS YARDS
WAS A GRATUITOUS BAILEE LIABLE ONLY FOR
GROSS NEGLIGENCE.

A gin company, permitting its customers to leave cotton ginned by it in its gin yards, so that they would not have to haul it back home or find a storage place until they sold it, and issuing receipts therefor in order that they might identify their cotton, was a gratuitous bailee, not liable for the loss of the cotton unless guilty of gross negligence.

yards of the defendants. When Peter Davis wished to sell the cotton he went to the gin yards of the defendants to get it, and found the cotton had been lost. The defendants refused to make good the loss. Hence this lawsuit.

On the part of the defendants it was shown that these receipts were given to the customers for the purpose of identifying their cotton which had been ginned by the defendants.

3. APPEAL AND ERROR 997(3)-FINDING OF After the cotton was ginned it was rolled out

COURT ON MOTION BY EACH PARTY FOR PER-
EMPTORY INSTRUCTION IS FINAL.

Where, in an action against a gin company for the loss of cotton left in its yards, each party asked for a peremptory instruction and requested no other instructions, the court's finding, exonerating defendant from negligence, was final, and had the same effect as the verdict of a jury.

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

Action by Peter Davis against the Planters' Gin Company, revived in the name of John P. Strange, administrator of Peter Davis. Judgment for defendant, and plaintiff appeals. Affirmed.

on the cotton yard of the defendants, and the customers could go there and get the cotton at any time, without any demand or notice to the defendants. The cotton was weighed and tagged by the defendants, and these receipts were given to the customers solely for the after it was ginned was left in the yards of purpose of identifying the cotton. The cotton the defendants until the customers came and hauled it away. There was a fence around the gin yards to keep out the stock, and the gates to the yards were kept closed for the same purpose.

Both parties asked for peremptory instructions, and the court instructed the jury to return a verdict for the defendants.

M. E. Sanderson, of Texarkana, for appel.
Will Steel, of Texarkana, for appellee.

Peter Davis brought separate suits in the circuit court against the Planters' Gin Com-lant. pany and the Garland Gin Company, to recov

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

(218 S.W.)

HART, J. (after stating the facts as above). | court for a peremptory verdict and request Counsel for the plaintiffs claims that the de- no other instruction the finding of the court fendants were bailees for hire, and that the is final, and has the same effect as the verdict court erred in instructing a verdict for the of a jury. Hill v. Kavanaugh, 118 Ark. 134, defendants. They rely on the case of Pho- 176 S. W. 336; Ozark D. M. Corp. v. Townes nix Cotton Oil Co. v. Pettus & Buford, 134 & Garanflo, 117 Ark. 552, 174 S. W. 151; Ark. 76, 203 S. W. 19, in which the court held Nutt v. Fry, 119 Ark. 450, 177 S. W. 1137; that a bailee for hire in exclusive possession St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, of the property must explain its loss before 139 S. W. 643, Ann. Cas. 1913C, 1339. it devolves upon the bailor to show that it was lost through the bailee's negligence. We cannot agree with counsel in this contention, and think that the receipts are essentially different in the two cases. In that case the bale of cotton contained the number and the gin weight for identification as in the present case, but it also contained the following:

"On return of this ticket properly indorsed we will deliver one bale of cotton ginned for P. & B. & S. Hunt."

This receipt was signed by the manager of the gin company. It will be observed that the holder of the receipt or ticket was required to present it to the gin company before he could obtain possession of the bale of cotton. Because the customer could not acquire possession of the cotton without presenting the receipt, the court held that the receipt was contractual in its nature, and established the relationship of bailor and bailee for hire between the parties.

[1, 2] In the case at bar there is nothing in the receipt itself to show that it constituted a contract between the parties. The evidence for the defendants shows that it was given to the customer for his benefit solely in order that he might identify his cotton and take it away from the gin without any demand or notice to the defendants. It is true that the customers were permitted to leave the cotton on the gin yards of the defendants, but this was done for their sole benefit, so that they would not have to haul the cotton back home, or find a storage place for it until they were ready to sell it. Under this state of the record the defendants were gratuitous bailees. The liability of a bailee without reward for lost goods intrusted to him depends upon whether he was guilty of gross negligence. Gulledge v. Howard and Wife, 23 Ark. 61; Wear v. Bleason, 52 Ark. 364, 12 S. W. 756, 20 Am. St. Rep. 186; Baker v. Bailey, 103 Ark. 12, 145 S. W. 532, 39 L. R. A. (N. S.) 1085.

[3] The evidence shows that the cotton was left on the gin yards of the defendants solely for the accommodation of the plaintiff, and the jury would have been warranted, under the evidence as disclosed by the record, in finding that the defendants were not guilty of gross negligence in regard to keeping the cotton. Both parties asked for peremptory instructions, and did not ask for any other instructions. Where both parties ask the

It follows that the judgment must be affirmed.

MISSOURI PAC. R. CO. v. CONWAY COUN-
TY BRIDGE DIST. et al. (No. 139.)
(Supreme Court of Arkansas. Jan. 26, 1920.
Rehearing Denied Feb. 23, 1920.)

1. JUDGMENT 713(1)—HOLDING ON APPEAL
AS TO MATTERS DETERMINED IS CONCLUSIVE
IN SUBSEQUENT SUIT.

The holding on appeal as to what was determined by the court below is conclusive in a subsequent suit in which res adjudicata is pleaded.

2. Judgment 713(1)

MATTER DISCUSSED ON APPEAL FROM ASSESSMENT IS CONCLUSIVE IN SUBSEQUENT SUIT THOUGH CLAIMED TO BE OUTSIDE THE ISSUES.

assessment, the method of assessing the property
Where, on an appeal from a bridge district's
was discussed and approved, it was not open
to inquiry in a subsequent suit, though it was
claimed that there was no issue on this point
in the first proceeding.

3. JUDGMENT 551-HOLDING THAT METH-
OD OF ASSESSING BENEFITS WAS NOT ARBI-
TRARY IS CONCLUSIVE IN SUBSEQUENT SUIT
FOR INJUNCTION.

assessment, the court expressly held that the
Where, on an appeal from a bridge district's
assessors had not arbitrarily fixed a method of
assessment not resulting in the acertainment of
the true benefits so as to work out uniformity,
the question could not be again litigated in a
suit for an injunction.

4. JUDGMENT 563(1)—UPHOLDING METHOD

OF MAKING ASSESSMENT IS CONCLUSIVE
AGAINST CLAIM OF DISCRIMINATION.

The action of the court in sustaining an assessment by a bridge district on an appeal therefrom was necessarily an adjudication that it was not discriminatory and arbitrary when compared with other assessments, and the question could not be reopened in a subsequent suit. 5. BRIDGES 5-TELEGRAPH AND TELEPHONE LINES, POWER LINES, AND PIPE LINES MAY BE INCLUDED IN IMPROVEMENT DISTRICT.

The Legislature may properly include, in an improvement district created to construct a bridge, telephone, and telegraph lines, other power lines and pipe lines, as is done by Acts 1917, p. 318, § 7.

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

6. JUDGMENT 563(1)—VALIDITY OF STATU-erty owner who deems himself aggrieved by
TORY METHOD OF MAKING IMPROVEMENT AS-
SESSMENT NOT CONCLUDED BY DECISION ON
APPEAL FROM ASSESSMENT.

The validity of a statute providing that the assessments of railroads, telegraph, and telephone lines for the construction of a bridge should be by the mile was not involved on an appeal from an assessment made in the manner provided, and was open to adjudication in a subsequent suit to enjoin the assessment.

7. BRIDGES 12-FRANCHISE OF RAILROAD IS TO BE CONSIDERED IN ASSESSING BENEFITS

BY AN IMPROVEMENT DISTRICT.

The franchise of a railroad is an element of value to be considered by the board of assessors in assessing its real estate within the bridge improvement district created by Acts 1917, 'p.

314.

Appeal from Conway Chancery Court; Jordan Sellers, Chancellor.

Suit by Missouri Pacific Railroad Company against Conway County Bridge District and others. From a decree for defendants, plaintiff appeals. Affirmed.

See, also, 134 Ark. 292, 204 S. W. 630. The Missouri Pacific Railroad Company brought this suit in equity against J. M. Gordon, as sheriff of Conway county, and the Conway County Bridge District, to enjoin them from taking any further steps towards enforcing local assessments upon the property of the company for the purpose of erecting a bridge across the Arkansas river within the limits of the proposed district.

The validity of the act is attacked in the bill, and it is also alleged that the assessment was unlawful and void for the various reasons which will be stated in the opinion.

The defendants in their answer asserted the validity of the statute and entered a plea of res adjudicata. The facts upon which the defendants rely to sustain their plea of res adjudicata are substantially as follows:

the action of the board of assessors may take an appeal from the action of the assessors to the board of commissioners within 30 days. It also provides that the commissioners shall hear all appeals and determine the same. The section further provides that the property owner may appeal from the findings of the commissioners to the circuit court within 60 days by filing his complaint in the circuit court setting up the facts and serving notice upon the chairman of the commissioners, and that such complaint shall be heard and determined as any action at law.

The railroad company, deeming itself aggrieved by the assessment of benefits, first appealed from the board of assessors to the commissioners, and then from the commissioners to the circuit court. In the circuit court a complaint was filed as required by the statute, and in the complaint the constitution

ality of the statute was attacked on several grounds. The complaint also alleged that the action of the board of assessors amounted to a confiscation of the property of the railroad company; that its action in assessing the benefits to the property of the railroad company was arbitrary; that the amount assessed was much greater than the benefits that would be derived from the erection of the bridge, and that the assessment of benefits was unreasonably high.

The district interposed a special demurrer to the complaint in the circuit court, which was sustained in part, and testimony was taken and heard by the court on the remaining issues. The judgment of the circuit court is full and complete, and shows the action of the court. It is as follows:

"Now, on this day, a regular day of the Conway county circuit court, comes on this cause for consideration, and comes the plaintiff, Missouri Pacific Railroad Company, by T. B. Pryor and W. P. Strait, its attorneys, and comes the Conway County Bridge District, J. J. Scroggin, and others defendants, by Sellers & Sellers, their attorneys, and this cause is submitted to the court upon the complaint of the plaintiff, the demurrer of the defendants, and oral testimony before the court, and the court being well and sufficiently advised doth find that, acting under the provisions of the act of the General Assembly of the state of Arkansas creating the Consaid district assessed against the plaintiff railway County Bridge District, the assessors of road company's line of railroad through Conway county, in accordance with the law creating the said district, as benefits the sum of approximately $88,000; that the plaintiff filed exceptions to such assessment before the board of assessors for the district, and said exceptions were by said board of assessors overruled, and

The Legislature of 1917 passed a special act forming all of Conway county into an improvement district for the purpose of building a highway bridge at a point to be selected by the commissioners of the district. Acts of 1917, vol. 1, p. 314. The line of railroad of the plaintiff lies north of the Arkansas river, and runs parallel with the river east and west through the county. Pursuant to the terms of the act, the commissioners organized the district and appointed assessors to assess benefits on the real property within the district, including the right of way of the railroad company. The assessors divided the district into five beneficial zones, and assessed the property in each zone at a different percentage, according to its proximity to the the assessment left as first made; that thereafter, within the time allowed by act, the plaintiff bridge. The assessments of benefits to the appealed from the action of the board of assesproperty of the railroad company was placed sors of said district to the board of commissionat $68,975. ers, as provided in the act, and that upon a Section 7 of the act provides that any prop-hearing before said board of commissioners the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S W.)

said assessment against the said plaintiff said property was reduced to the sum of $68,975, as the amount of benefits to the said plaintiff railroad company's said property; that subsequent to such hearing, and within the time allowed by said act, the plaintiff filed in this court its complaint, alleging, among other things, that the said railroad company was not and could not be benefited by the construction of the bridge contemplated in said act, and that if said plaintiff and its property was benefited at all that said benefit, as fixed by the board of assessors of board of commissioners, was in excess of the amount of benefits which would actually be

received.

"That the defendant filed a demurrer to said petition to all parts thereof except upon the issue that the said property of the said plaintiff would not be benefited by the improvement, and that the benefits as assessed were in excess of the true benefits, and upon consideration of the demurrer the court sustained the same, and held that the plaintiff was only entitled to have heard the question as to whether or not the property of the plaintiff as assessed was benefited at all, and, if so, the extent of such bene

fits.

"The defendant thereupon filed a second demurrer to the complaint upon the grounds that no facts were alleged upon which to base the conclusion set out, and that the complaint, after being amended, was insufficient to constitute a cause of action.

"Upon consideration the second demurrer was overruled by the court. Upon consideration of the testimony the court finds that the said plaintiff's property, being its line of railroad through Conway county, will be benefited by the construction of the said bridge contemplated in said action, and that the amount of benefits in the sum of $68,975 is not and will not be

excessive.

"Wherefore it is by the court considered, ordered, and adjudged that plaintiff's complaint be, and the same is hereby, dismissed; that the acts of the board of assessors and board of commissioners in fixing the benefits against the property of plaintiff in the sum above mentioned be, and they are hereby, confirmed, and the amount of benefits accruing to, and which will accrue to, the property of plaintiff, as set out in the complaint, by reason of the construction of the improvement, is fixed at the sum of $68,

975."

by appealing from the finding of the board of
assessors to the board of commissioners, and
then to the circuit court, as provided by the
statute. In the circuit court a complaint
was filed by the railroad company as required
by the statute. The circuit court sustained a
demurrer to a part of the complaint, and
tried the remaining issues on the pleadings
and the evidence introduced. We have set
out the judgment of the circuit court in full
in our statement of facts, but for convenience
again set out that part of it which is most
material to the issues raised by the plea of
res adjudicata in the present case.
follows:

It is as

"Now, on this day comes the plaintiff by its attorneys, T. B. Pryor and W. P. Strait, comes the defendant Conway County Bridge District, by attorneys Sellers & Sellers, and this cause coming on for hearing upon the demurrer to the court being well and sufficiently advised, it plaintiff's petition, pleading in this cause, and is ordered and adjudged that the demurrer to the petition, pleadings of the Missouri Pacific Railroad Company, be, and the same is hereby, sustained to all the provisions and matters pleaded, except that feature and provision alleging that plaintiff was not benefited, and that

the benefits assessed are excessive and more than the actual benefits received, to which finding and ruling the plaintiff, Missouri Pacific Railroad Company, at the time excepted and saved exceptions."

The railroad company duly prosecuted an a peal from the judgment of the circuit court to this court, and the judgment of the circuit court was affirmed. The opinion is reported in 134 Ark. 292, 204 S. W. 630, under the style of Mo. Pac. Rd. Co. v. Conway County Bridge Dist.

[1] Upon the present appeal there is a dispute between the parties as to what was decided in that case, and it is also strongly and earnestly insisted by counsel for the plaintiff that in certain respects the holding of this court in that case was not in accord with the issues raised by the appeal. In short, counsel claim that the court went beyond the issues and decided matters not raised by the Other facts will be stated in the opinion. appeal. On this point the case at bar must The decree of the chancellor recites that be determined by the opinion and statement a demurrer was sustained to that portion of of facts on the appeal in the case of the cirthe complaint which seeks to raise the ques-cuit court reported in 134 Ark. 292, 204 S. W. tion of the justness or equality of the assessment of benefits against the property of the railroad company, and that the plea of res adjudicata filed by the defendants is sustained.

The plaintiff has appealed.

630. Whatever the court held on the appeal in that case was determined in the court be- . low is conclusive in the present suit. If this were not so litigation might be interminable, and a judgment settling the rights of the parties would be only a starting point for

Thos. B. Pryor, of Ft. Smith, and W. P. new litigation. In the opinion in that case, Strait, of Morrilton, for appellant.

Calvin Sellers, of Morrilton, for appellees.

in discussing what issues were presented by the appeal, the court said:

"Therefore the only question for decision is whether or not the evidence is legally sufficient to support the finding of the circuit court as to the amount of assessment against appellant's property, and the uniformity of the assessment

with those imposed upon other property in the | basis, which was in the manner pointed out district."

[2] In making the assessment in that case the assessors divided the district into five beneficial zones, and assessed the property in each zone at a different percentage, according to its proximity to the bridge. It is now insisted that this was an arbitrary method of assessing the property of the railroad, and that there was no issue on this point made by the pleadings in the case in the circuit court. It is sufficient answer to this to say that this method of assessing the property was distinctly referred to, discussed, and approved in the opinion on the appeal in that Hence the present suit is concluded in this respect by that opinion.

case.

by the statute. This court affirmed the judgment of the circuit court sustaining the assessment in this respect, because the statute had been followed in making the assessment.

As we have just seen, the holding is in accord with the rule laid down in the Lee Wilson Company Case, although that case was not referred to in the opinion on the appeal in the circuit court case. It is true that the Lee Wilson Company Case was subsequently overruled in so far as it held that the validity of the statute could be attacked on appeal under the statute from the finding of the bodies authorized to make the assessment of benefits; but it was not overruled in so far as it held that upon an appeal under the statute from the assessment of benefits the court could determine whether the property was not benefited at all, whether the benefits assessed exceeded the benefits received, whether the assessment of benefits was arbitrarily made, or, in fact, whether the assessment of benefits amounted to a confis‐ cation of the property of the complainant. See K. C. Sou. Ry. Co. v. Road Imp. Dist. No. 6 of Little River County, 215 S. W. 656.

[4] It appears from the complaint that the total benefits assessed against all the real property in Conway county, including the railroad of the plaintiff for the construction of the bridge, is $296,806, of which amount plaintiff's 22 miles of railroad is assessed at $68,975, an approximately one-fourth of the entire benefits to be received by all the property within the district by reason of the construction of the bridge. It is claimed that this amount not only is far in excess of the benefits received by the railroad company from the construction of the bridge, but that it is discriminatory and arbitrary when com

[3] It is also insisted in the case at bar that the assessment of benefits was arbitrary, and much greater than the benefits received by the railroad company. It is now insisted that this issue was not raised by the appeal in that case. We repeat that this issue was discussed and determined by the court on that appeal. The court expressly recognized that the board of assessors had no right to arbitrarily fix a method of assessment which would not result in the ascertainment of the true benefits so as to work out uniformity in the assessments; but the court expressly held that the assessors had not done so, and the question cannot be again litigated. Moreover, this holding was in ac cord with the previous decisions of this court. In Lee Wilson Co. v. Road Imp. Dist. No. 1, 127 Ark. 310, 192 S. W. 371, the court had under consideration the provisions of the general law for the organization of road districts. In that case provision was made by the statute for an appeal to the county court to hear and determine the justness of any assessment of benefits, and the court was au-pared with the assessments made upon the thorized to equalize, lower, or raise any as sessments upon a proper showing to the court. The property owner there pursued the statutory method of appealing from the judgment of the county court making the assessment, and contended on appeal to this court that the assessors, in making the assessment of benefits to accrue to the landowner, acted in an arbitrary manner, which resulted in an assessment far in excess of any benefits which would be derived from the improvement, and which was so discriminatory and confiscatory as to amount to taking its property without due process of law. The court held that the evidence showed that the assessments of benefits was arbitrary and not made in the manner required by the statute. It held that the court erred in sustaining the assessment and reversed the judgment of the circuit court which had sustained the judgment of the county court in making the assessments.

In the present case the assessors assessed the property of the railroad upon a mileage¦

other property within the district. It is claimed that this question was not within the scope of the issues raised by the appeal in the former case. We cannot agree with counsel in this contention. The judgment of the circuit court expressly recites that the sum of $68,975, the amount of benefits as sessed against the property of the railroad company, was not excessive. In the opinion upon appeal in that case the court said that the assessors divided the county into five zones, according to the proximity of the property to the bridge, and assessed the benefits by percentages on the value of the property for the purpose of taxation. The court sustained that method of assessment. While the evidence as disclosed by the record was not set out in detail and discussed by the court, the action of the court in sustaining the assessment in the opinion was necessarily an adjudication of the matter against the railroad company, and the question cannot be reopened in the present case.

To sum up, under section 7 of the act in