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if the stumps were removed during that was issued and placed in the hands of the year, at the end of the year it would be sheriff who levied upon certain lots in the known exactly how much of the land was to city of Searcy, Ark. Appellee claimed the be free from rent.

property as his homestead. There was a sharp conflict in the testi- The appellee testified that the property mony between the plaintiffs and defendants was his homestead; that he was now living as to how many acres of the land had been in Des Arc, where he moved in September, cleared of stumps during the year 1916; but 1915; he lived on the place in Searcy from this question was submitted to the jury un- March, 1914, until September, 1915. Appelder the principles of law above announced. lee was a married man with one child. His The jury returned the following verdict. wife and child lived with him. He expected

“We, the jury, find for the plaintiffs, and fix to return to the home in Searcy about Octothe value of the corn to which plaintiffs are en-ber 1st of the coming year. The property in titled in the sum of $200." The court rendered judgment upon the ver- Appellee had expected to move about June

Searcy was then occupied by one McCain. dict in the alternative. It adjudged that 8th, and had notified his agent at Searcy to plaintiffs have and recover of the defendants so inform the tenant. Appellee had lived at the 225 bushels of corn sued for, or, in the Des Arc eight or ten years, then went to event that same is not delivered to plaintiffs, Searcy to work for Mr. Yarnell by the month. that they recover of the defendants the sum In three or four months after going out of of $200. [2] It is insisted that this was error be where he has been living ever since. Appel

business at Searcy he went back to Des Arc, cause the verdict of the jury might have lee was asked if he had not testified before been based upon a less number of bushels the clerk with whom he had filed his schedthan 225, the amount sued for. Appellants did not make this a ground of their motion ule that he had moved back to Des Arc perdid not make this a ground of their motion manently with the intention of making that for a new trial, and under our rules of prac- his future home, and he answered that he did tice cannot raise that issue on appeal. not remember that he had so testified. He Moreover, there was no dispute between the not remember that he had so testified.

was asked what the truth was concerning the parties as to the number of bushels of corn in the crib, and we think the form of the matter, and answered that he did not know verdict indicates that the jury found for the what he was going to do; that he wanted to plaintiffs for the amount of the corn sued get the judgment of the People's Bank for, and fixed its value at $200.

against him and Yarnell straightened up in

some way. Appellee was asked if his wife Therefore the judgment will be affirmed.

did not own a home in Des Arc, and if he

did not testify before the clerk that he went (136 Ark. 517)

back to Des Arc and built a home there in PEOPLE'S BANK OF SEARCY v. BROWN. his wife's name, and he answered that his (No. 342.)

wife owned some property, and he did not (Supreme Court of Arkansas. May 6, 1918.) build a home there in his wife's name; that

his wife had bought a place in Des Arc since 1. APPEAL AND ERROR 1012(1)-REVIEWFINDING OF TRIAL COURT..

she had been back there. Appellee prior to The finding of the circuit court sitting as a that time had conveyed all of his property in jury on an issue of fact will not be disturbed by Des Arc to his wife. He stated that his wife the Supreme Court, where there is legally sufficient evidence to sustain it, even though the had a home at Des Arc; that he had been livfinding appears to be contrary to the prepondering there about twelve months.

He was ance of the evidence.

asked if he did not testify before the clerk 2. HOMESTEAD 57(3)-CHARACTER OF LAND that he had no intention of coming back to -SUFFICIENCY OF EVIDENCE.

Evidence held sufficient to sustain the trial Searcy, and answered that he did not rememcourt's finding that certain land on which exe- ber that he ever did. Appellee stated that he cution was levied was the homestead of the had been offering to sell his home at Searcy judgment debtor.

for $2,500, had advertised in the papers for Appeal from Circuit Court, White County ; sale, and would have sold it if he could have J. M. Jackson, Judge.

obtained that price, and bought another Action by the People's Bank of Searcy cheaper home; he was intending to move against H. L. Brown, wherein plaintiff had back to it if he could not sell it; if he could judgment. On the issue of the homestead have sold the place he would have bought a character of land on which execution was cheaper home in Des Arc, and remained there, levied, defendant secured judgment, and and he so testified while his schedule was plaintiff appeals. Affirmed.

pending before the clerk. Appellee testified Brundidge & Neelly, of Searcy, for appel- that he had no intention for a year or more lant. Emmet Vaughan, of Des Arc, for ap- to move back to Searcy; did not know what pellee.

business he was going into.

Appellant introduced testimony tending to WOOD, J. The appellant had obtained prove that after the execution had been isjudgment against the appellee. Execution sued and the lots in controversy had been

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

levied upon that appellee wrote his agent at Appeal from Circuit Court, Washington Searcy that he intended to move back to County; J. S. Maples, Judge. Searcy. In one of his letters he said, "I have Suit by Ellen A. Myers against Elmer a serious notion of moving back to Searcy Linebarger. From judgment of dismissal, some time in January next, but I cannot say plaintiff appeals. Reversed and remanded. yet for sure.” In another letter he stated,

Walker & Walker, of Fayetteville, for apamong other things, “I will wait until October pellant. H. L. Pearson, of Fayetteville, and 1st to move, but I am sure going to move W. N. Ivie, of Rogers, for appellee. then, as I think that I can get into something up there that I can make a living out

HUMPHREYS, J. Appellant instituted of." The agent of appellee testified that ap- suit against appellee in the Washington pellee had the property in controversy adver-chancery court to impound and recover a tised for sale until the time the execution was collateral note of $1,000, executed by appellevied upon it. The agent's understanding lant to Rosa E. Trone, and by Rosa E. Trone with appellee was that he should sell the assigned to appellee; and to recover $3,200 property if he could get as much as $2,500. as damages, alleged to have been sustained The agent had an offer of $2,000 or $2,200, by appellant in an exchange of lands beand the appellee declined to take it. The ap-tween appellant and Rosa E. Trone, which pellant also introduced testimony to contra-exchange was induced by alleged fraudulent dict the testimony of the appellee and to the

misrepresentations and made by appellee effect that the appellee testified before the concerning the land conveyed by Rosa E. clerk, when the schedule of exemption of his Trone to appellant. The complaint, in subproperty was pending before him, that he had stance, alleged: That appellant owned a ho no intention of making Searcy his home tel situated upon two lots in Riviera, Tex., again, and that when he left Searcy he went of the value of $5,000, and a dwelling situatto Des Arc with the intention of making it ed upon lot 17, block 10, in said town, of the his permanent future home.

value of $1,500. That appellee inspected the The trial court upon substantially the above facts rendered judgment in favor of to exchange the Texas property for farm

cts rendered judgment in favor of property and for a commission of $100 agreed the appellee, from which is this appeal.

property in Washington county, Ark. That [1] It is the well-established rule of this at the time he was the agent for the sale court that the finding of the circuit court, sit- or trade of a 108-acre tract of land owned ting as a jury, on an issue of fact will not be by Rosa E. Trone in said county and state, disturbed where there is legally sufficient but concealed this fact from appellant. That evidence to sustain the same, even though appellee returned to Arkansas and, by letter, such finding appears to be contrary to the proposed trading the Trone property, falsely preponderance of the evidence. Harris v.

and fraudulently representing that the folRay, 107 Ark, 281, 154 S. W. 499.

lowing inprovements were upon the Trone [2] The finding here is sustained by legally place, to wit: A store building, 20 by 60 sufficient evidence, and the judgment is there- feet, which rented for $10 per month, when fore affirmed.

in fact the store building had no rental val

ue; an evaporator, capacity 160 bushels per (134 Ark. 231)

day, when in fact the evaporator was locatMYERS v. LINEBARGER. (No. 351.)

ed on a neighbor's land; 60 acres in cultiva(Supreme Court of Arkansas.

osas. May 6, 1918.) tion, when in fact only 3742 acres were in 1. PRINCIPAL AND AGENT Cm71 - LIABILITY cultivation; 500 grown apple trees in full

– OF AGENT-FRAUD.

bearing, when in fact there were only 285 The owner of hotel property, induced to ex- bearing apple trees thereon, and that the change it for farm property by the fraud and farm was fenced and cross-fenced with hog deceit of her agent as to the improvements son wire, when in fact it was not so fenced and the farm property, could recover from the agent damages sustained thereby.

cross-fenced. That appellant, relying upon 2. PARTIES 31 - NECESSARY PARTIES - AC- the representations of the Washington county TION FOR FRAUD.

land made by appellee, exchanged her propThe owner of farm property, with whom the erty for the Washington county property, owner of hotel property was induced to exchange by the fraud and deceit of her agent as to the upon which there was a mortgage in favor improvements on the farm property, was not a of Mrs. W. N. Stewart, and obtained in the necessary party defendant to action by the own- exchange the note of Rosa E. Trone, securer of the hotel property against her agent to re- ed by vendor's lien upon the Texas property, cover damages for the fraud.

and transferred said note to appellee as 3. PARTIES Cw31 - JOINT TORT-FEASORS

collateral for his commission of $100 and for JOINT OR SEVERAL SUITS.

If the owner of farm property, and the $100 advanced by him to her for the purpose agent for the owner of hotel property who ex- of moving to the Arkansas lands. That apchanged for the farm property, were both guilty pellee was entitled to a credit upon appelof fraud and deceit on the owner of the hotel lant's claim of damages for the $100 so adproperty in misrepresenting the improvements on the farm property, they can be sued either vanced. jointly or severally, like other joint tort-feasors. Appellee filed a demurrer to the bill upon

the following grounds: (1) That the court "In an action by the seller of a cigar stand had no jurisdiction of the subject of the against his agent to negotiate the sale, for his action; (2) that there was a defect of par- seller by inducing him to take, in payment, a

disloyalty in aiding the buyer to defraud the ties plaintiff; (3) that there was a defect of note secured by a mortgage on a worthless lot of the parties defendant; (4) that the complaint land, the seller could recover, although the did not state facts sufficient to constitute a agent made no positive misrepresentations, cause of action. The court treated the de- tive representations, but also upon the agent's murrer as a motion to transfer the cause to failure to reveal, and his concealment of, facts the law docket, and transferred it to the which he knows and which he should disclose, circuit court.

an agent who occupies a fiduciary relation, be[1] The demurrer was renewed and sus

ing bound to act with loyalty and in good faith." tained in the circuit court, and the cause

It was held in the case of Palmer v. Pirwas dismissed at the cost of appellant, from son, 4 Misc. Rep. 455, 24 N. Y. Supp. 333,

that: which judgment of dismissal an appeal has been prosecuted to this court. Appellant in principal to convey land in exchange for other

"Where an agent fraudulently induces his sists that the complaint stated a cause of land of less value than represented, the agent is action, and that the court erred in sustaining liable for the damages thus sustained." the demurrer and dismissing the complaint.

It was held in the case of Varner v. InAppellee insists that as a matter of law no terstate Exchange et al., 138 Iowa, 201, 115 right of action accrues to a principal against N. W. 1111 (quoting syllabus 1) : an agent on account of deceit and fraud

"Where defendant, as plaintiff's agent in newhere the principal retains possession of gotiating the exchange of a horse for certain the property procured by the agent; and al- land, expressly undertook that the title to the so contends that a suit instituted by the land which he was inducing his principal to re

ceive in exchange for the horse was good, subject principal against the agent for such fraud only to a certain mortgage or trust deed on and deceit is a ratification and approval of which no foreclosure proceedings had been instithe misconduct of the agent. We are unable tuted, defendant could be held to make good to find any authorities in support of appel- such representation, if it proved false to his

principal's damage.' lee's contention. On the contrary, it is well settled in the law that a principal may re

- It seems that the authorities are practicover damages from his agent sustained on cally unanimous on this point. The authoriaccount of fraud and deceit practiced by the ties cited and insisted upon by appellee have agent, which induced the principal to part no application to executed contracts.

[2, 3] It is insisted by appellee that the with his property. Growing out of the fiduciary relationship existing between the prin- court properly sustained the demurrer, becipal and agent, the law exacts loyalty and cause there is a defect of parties defendant. the utmost good faith from the agent toward It is said that Rosa E. Trone is not only a the principal. The general principle an- proper, but a necessary, party. It is not alnounced in Corpus Juris is as follows:

leged in the complaint that Rosa E. Trone "The relation of an agent to his principal is actively participated in the fraud and deordinarily that of a fiduciary, and as such it is ceit. The fraud and deceit alleged as grounds his duty, in all dealings concerning or affecting for recovery were fraud and deceit practiced the subject-matter of his agency, to act with by appellant's agent, which induced her to the utmost good faith and loyalty for the furtherance and advancement of the interests of his exchange her Texas property for the Arprincipal. * * If the agent fails to ex- kansas land. Therefore it is apparent that ercise good faith and loyalty to his principal, Rosa E. Trone is not a necessary party unand is guilty of misconduct which operates to der the allegations of the complaint. Even his principal's disadvantage or injury, he is re- if there had been an allegation that she parsponsible to his principal for any loss resulting therefrom.” 2 C. J. & 353.

ticipated in the fraud, they would have both It is also laid down as a general principle could have been sued either jointly or sever

been wrongdoers under the allegation, and in Corpus Juris that: that an agent shall make known to his principal | $ 607.

"Loyalty to his principal's interests requires ally like other joint tort-feasors. 2 C. J. every material fact concerning his transactions For the error indicated, the judgment is and the subject-matter of his agency that comes reversed and remanded for proceedings not to his knowledge, or is in his memory in the inconsistent with this opinion. course of his agency; and if he fails to do so, he is liable in damages to his principal for any injury incurred or loss suffered in consequence

(134 Ark. 218) of such failure. * *" 2 C. J. § 369.

INDIANA SILO CO. v. HARRIS. (No. 343.) These general principles are gleaned from (Supreme Court of Arkansas. May 6, 1918.) a great number of cases cited in notes to sus- i. SALES Own 285(2)—PROVISIONS AS TO CLAIM tain the text. Special reference is made to

FOR DEFECTS-BINDING FORCE. the following cases because they are so near- In an action for the price of a silo, wherein ly in point:

defendant counterclaimed for damages, a proIt was held in the case of McMurray v. vision of the contract of sale that all claims for Garnett (Mo. App.) 182 S. W. 128 (quoting be made by the purchaser within 10 days of

shortage, and damaged or defective parts, must fifth syllabus):

the receipt of the silo was not binding on de

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

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fendant, where there was no shortage, and no "It is understood that the silo above ordered damaged or defective parts, which he discov-is guaranteed according to current catalogue, ered or could have discovered by the exercise and all staves are to be tongued and grooved. of any ordinary care within 10 days.

All silos furnished with continuous door frame 2. SALES 261(1)-WARRANTY OF SILO. and doors, rafters, wood rim and anchors. All

Provisions in the contract covering sale of claims for shortage, damaged or defective parts, a silo that it was guaranteed according to the must be made by purchaser within ten days current catalogue, and the provisions in the from time of receiving silo. In the event shortseller's catalogue that they guaranteed the age exists or parts are to be replaced purchaser long leaf yellow pine silos, properly roofed and shall render all friendly and necessary assistpainted, to last and give good satisfaction for ance free of charge and shall return broken or 20 years, constituted an express warranty that defective parts to railroad station and shall conthe silo would preserve ensilage, and was fit sign them to the Indiana Silo Company and furfor the purposes for which it was manufactured nish said company with a bill of lading as eviand sold.

dence of his claim. The Indiana Silo Company 3. SALES Ow273(1)-SALE OF SILO-IMPLIED agrees to pay all freight charges in making exWARRANTY.

change or replacing shortage. All settlements In the absence of express warranty, the sell- to be made at time of delivery of silo, either er of a silo was liable on an implied warranty in cash or bankable notes bearing current rates that it would preserve ensilage and was fit for on interest. It is expressly agreed that the silo the purposes for which it was manufactured and above ordered shall be and remain the exclusive sold.

property of said Indiana Silo Company, and 4. SALES Cw446(1)—BREACH OF WARRANTY, that the title thereto shall not vest in the purINSTRUCTIONS.

chaser until the purchase price thereof or any In an action for the price of a silo sold, note or security given therefor shall have been the buyer counterclaiming for damage, in the paid in full in cash, and the acceptance of absence of conflict between the expressed and notes or other security shall not act as a waivimplied warranty of fitness from the buyer's er of this condition. This order embodies all viewpoint of the evidence, he had the right and is the only agreement between the parties

hereto. to have the issue presented from his viewpoint.

[Sign here] N. C. Harris.

"P. O., Bigelow, Ark., R. F. D. 5. APPEAL AND ERROR Om 216(1) - INSTRUC- "Witness: F. H. Lillick, Agent.” | TIONS_SUBMISSION OF ISSUE-DUTY TO REQUEST.

The plaintiff alleged that it sold and deIn an action for the price of a silo, the buy-livered the silo under the above contract, er counterclaiming for damages, where the sell which it set up, and which was also introer did not request an instruction presenting the issue whether the damage, if any, to the duced in evidence. It also set out the notes, buyer, resulted from his own failure to con- alleging that no part thereof had been paid, struct the silo properly, rather than from defec. except what was credited thereon, and altive material, the seller cannot complain that the theory of damages was not made an issue. leged that it had a lien on the silo, and pray

ed for judgment for the balance due and for Appeal from Circuit Court, Perry County; an order directing attachment of the propG. W. Hendricks, Judge.

erty, described in the complaint. Action by the Indiana Silo Company The appellee answered, admitting the exeagainst N. C. Harris, wherein defendant fil- cution of the notes and the contract set forth ed cross-complaint. From judgment for de

From judgment for de- in the complaint, which he alleged constifendant on his counterclaim, plaintiff ap- tuted one transaction.

plaintiff ap- tuted one transaction. He set up as a part peals. Affirmed.

of the same transaction, and as part conThe appellant brought this action against sideration of the purchase of the silo, that the appellee to recover a balance of $237.58 he was made agent of the plaintiff for the due on a promissory note executed for the sale of silos and was to be allowed a certain purchase price of a wood stave silo which commission; that he had earned under his was bought of the appellant under the fol- agency contract enough commissions, togethlowing contract:

er with the check he had sent to plaintiff, "'Indiana Silo Company, Kansas City, Missouri. to pay off the notes, except the sum of $71.03.

He alleged that the silo purchased by him "Date, March 12th, 1914.

of plaintiff was "of rotten material, same "Please ship me on or before May 1st, 1914, or at your earliest convenience, to town of being knotty, and when filled with ensilage Bigelow, county of Perry, state of Arkansas, permitted the ensilage to freeze and spoil. the following described silo at prices f. 0. b. He alleged that the silo was purchased acKansas City, Mo.; this order being subject to cording to current catalogue, copy of which approval of the Indiana Silo Company at Kansas City, Mo., 20¢ freight allowed.

was furnished the defendant, with the guarOutside

anty and description of the silo marked by Height. Kind of Wood. Diameter,

Price. the agent; that when the silo was put up and

filled with ensilage it was found to be worth

$250.00 2pc. Yellow Pine 12.50 less and unfit for the purpose for which it 1-14

30
Less 5% discount

was purchased; that he had put up the silo

$237.50 as directed by the plaintiff and in a proper "On receipt of the above I will pay to the manner; that the defendant, by reason of Silo Company, or its order, $237.50, payable the failure of the plaintiff to furnish a silo at Morrilton, Bank of Morrilton, Ark., as follows, to wit: Payable on or before December as represented and according to the contract, 1st, 1914, with privilege with longer time if had lost about 20 tons of ensilage, of the wanted with 8% from September 1st, 1914. value of $300, and also the value of the ma

.

terial and the work which the defendant had, er defective or not; but it turned out that furnished in the sum of $50, and damages it was. He put up the silo according to the which the defendant had sustained by reason advice of the agent of the plaintiff, relyof the attachment in the sum of $50. The ing on his judgment that the staves were defendant prayed by way of cross-complaint suitable. Appellee had noticed that some of that he be allowed to recover the sum of the staves were not hard lumber, and had $338.97, being the amount of his damages, called plaintiff's agent's attention to that less the balance due upon the notes as men- fact, and he said that the silo was all right tioned, and for costs.

and to put it up. He stated to go ahead and The plaintiff answered the cross-complaint, use it, and that the plaintiff would pay the denying its allegations, and alleging that de- damages, if there were any loss. Appellee fendant had never notified plaintiff of any did not notify the plaintiff of any defects defect in the material of which the silo was in the silo until after the commencement constructed until after the commencement of the suit, except to call the agent's attenof the suit. Plaintiff, therefore, pleaded such tion to it. Appellee discovered, when he befailure to notify as a waiver. Paintiff also gan to take the ensilage off the top, that it alleged that the defendant had an opportunity was spoiled all the way down from the top of inspecting the material of which the silo to the bottom. The bottom of the silo was was constructed several months after its all rotten. The lower ends of the staves were delivery, and to ascertain whatever defects rotten five or six inches up. In laying the there were, if any, in such material. It foundation the appellee followed the instrucpleaded that the defendant was estopped tions of appellant's agent and the plat and by his conduct from claiming damages on form appellant furnished him. A witness account of such defect, if any. Plaintiff al- who assisted appellee in putting up the silo leged that, if any damages resulted from the corroborated the testimony of the appellee. loss of ensilage, it was the direct result of He stated that the silo was erected by an improper and negligent construction of the experienced contractor and carpenter. The silo and the careless methods of defendant material of which it was constructed rotted in attempting to preserve the ensilage. and molded, and permitted the ensilage to Plaintiff, therefore, prayed that the cross seep between and through the sides.

The complaint be dismissed.

silo was properly roofed and painted. The undisputed testimony shows that the There was testimony on behalf of the apdefendant purchased of the plaintiff, through pellant tending to prove that the defective one of its agents, a silo under the contract condition of the silo was caused by failure set forth in the complaint, and executed his on the part of the appellee to build the same notes therefor as the complaint alleged. At according to the instructions that were furthe time of the purchase the agent of the nished him. These instructions called for plaintiff showed the defendant "the current a cement rim to be run up at least six inches catalogue” referred to in the complaint and on the inside of the base of the staves. The read to him certain paragraphs, among purpose of the cement rim on the inside which was the following:

was to prevent the air from coming in under "We guarantee our long leaf yellow pine silos the base of the staves and holding the base when properly roofed and painted to last and of the silo firmly on its foundation. The give good satisfaction for a period of twenty cement base was built contrary to the inyears.

structions. The rim of concrete was put on The silo purchased was to be of long leaf the outside, and built up against the staves. yellow pine. Testimony on behalf of the The effect of it was to catch the water as it appellee tended to prove that the material rained, and hold it, and it rotted the botof which the silo was constructed was staves tom end of the staves. The defective con-' of long leaf yellow pine and bands, which dition of the staves was caused entirely by was shipped by appellant to appellee in a

a failure to properly build the concrete rim knocked-down condition. Appellant furnish- at the bottom of the silo. This failure caused

. ed appellee with plans for building the same cracks at the bottom and produced the deand appellee constructed the silo according cayed condition of the silo. to these plans. The material was received

The court, among others, at the request by appellee in May, and the silo was erected of the appellee granted the following prayers: about the last of the following July. Appel- “(3) If the plaintiff warrants the silo to be lee, a month or so afterwards, filled the silo reasonably fit for the purposes for which it was with ensilage, placing therein about 80 tons. silo was not of quality warranted and was not

sold to the defendant, and if you find that said The agent of appellant saw the silo before he fit for such use, defendant has the right to reput it up and instructed the appellee to go cover on his counterclaim all such damages as ahead and put it up, that the material was you find from the proof he has sustained by

reason of such unfitness." all right. This was appellee's first experience

"(4) If you find that the plaintiff was enwith silos; he had no occasion to know any gaged in making silos and selling silos to purthing about what it took for staves to make chasers for their own use, and made and sold a silo.

the silo to the defendant for his use, it as He was no judge of the material, I matter of law warranted that it was reasonably and from the looks of it could not tell wheth- fit for the use for which it was intended."

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