but denies that the lands purchased under said contract were ever advertised and sold at public auction in the city of Wynne to the highest bidder. He denies that F. D. Rolfe became the purchaser of said lands at public sale as the highest bidder thereof. He denies that he was ever notified of the time and terms of said alleged sale. In his cross-complaint he alleges that the lands set out in the plaintiff's complaint were purchased under the contract above referred to between Johnson, Sharp, and himself. He alleges that said lands were purchased for the average price of not more than $8 per acre; that said lands have en

agreement, made and entered into by and between S. D. Johnson and A. W. Bonner, both of Lee county, Arkansas, and C. L. Sharp, of Cross county, witnesseth: That the said parties have all been engaged in securing the purchase of certain tracts of land in Cross county, Ark., the same being paid for and owned by the said S. D. Johnson and the deeds made to him, as shown by the records of Cross county, Ark., but with the understanding that said lands are to be handled and disposed of in any way agreed upon between the parties hereto, and the net profits are to be divided equally between the said parties. The profits shall be construed as being the dif-hanced in value, until the same are now worth ference between the purchase price and sale price of said lands, after deducting interest on the purchase price at the rate of 6 per cent. per annum, from date of purchase to the date of sale, together with any taxes that may have been paid thereon. It is understood that this agreement applies to all lands now deeded to said S. D. Johnson in Cross county, Ark., and any other after-acquired lands in which the other two parties hereto were interested in securing the purchase, and the same was accepted by the said S. D. Johnson as satisfactory to him. It is also understood that each is to bear one-third of the expense incident to the purchase and sale of any lands under this agreement. In testimony whereof, all the parties hereto have signed their names on this the 16th day of March, 1909. S. D. Johnson. A. W. Bonner. C. L. Sharp."

the sum of $30 per acre; that after said lands had enhanced in value the defendant, together with Johnson and Sharp, were at different times offered sums for said land that would have netted them a large profit, which said Johnson and Sharp refused to accept; that after said lands had enhanced in value, as aforesaid, the said Johnson and other persons agreed to form a corporation to take over said lands at a sum equal to the actual cost price, together with the interest; that pursuant to said fraudulent design the said Johnson, without notice in any manner to this defendant and cross-complainant, on the 11th day of July, 1912, executed to said F. D. Rolfe a quitclaim deed to the lands in controversy for a nominal consideration of $1; that the said Johnson, Rolfe, and other members, who are stockholders of plaintiff corporation, were fully acquainted with, and The instrument was duly acknowledged had full knowledge of, the contract between and filed for record. The complaint further this defendant and cross-complainant and the alleges that all of said lands were, after due said Johnson; that nothing of value ever advertisement and notice, sold at public auc- passed between them and said Johnson and tion at the courthouse in the city of Wynne Rolfe for said lands. The prayer of the crossto the highest bidder for cash, and subject complaint is that the lands be sold under to a mortgage due to the Hartford Life Insur- an order of the court for a division of the ance Company, and that at said sale F. D. proceeds under the terms of said contract, and Rolfe became the purchaser, he being the that the defendant have judgment highest bidder therefor; that as such puragainst S. D. Johnson for one-third of the chaser he received a deed from the said John-value of said lands after deducting therefrom son and assumed to pay the mortgage to the the cost price, together with taxes and inHartford Life Insurance Company; that he terest, and that said judgment be declared a afterwards conveyed said lands to the plainlien upon the land. tiff, which assumed to pay said mortgage debt; that said C. L. Sharp and his assignee and A. W. Bonner were duly apprised and notified of the time, day, and terms of said sale; and that after the same was made each of said parties was tendered the amount due to him under the terms of the contract above referred to. The prayer of the complaint is that said Bonner and Sharp and his assignee be summoned as defendants in the cause; that the contract between Johnson, Sharp, and Bonner, above referred to and set out, be canceled as a cloud upon the title of the plaintiff; and that the title of the plaintiff to said lands be quieted and confirmed. HART, J. (after stating the facts as above). Bonner filed an answer and cross-complaint. Counsel for plaintiff seek to uphold the deIn his answer he admits the execution of the cree of the chancellor upon the authority of contract exhibited to the plaintiff's complaint, | McCulloch v. Chatfield, 67 Fed. 877, 15 C. C.

the answer and cross-complaint of Bonner, and the same were dismissed for want of equity. The court then rendered a decree canceling the written contract between Johnson, Bonner, and Sharp so far as it affected the plaintiff's title to the lands in controversy,

The chancellor sustained a demurrer to

and decreed that it be removed as a cloud upon the title of the plaintiff, and that the title to all the lands involved in this action be

confirmed and quieted in the plaintiff.

S. Brundidge, of Searcy, for appellant. Killough & Lines, of Wynne, for appellee.

that the lands were to be disposed of under the joint direction of all the parties to the contract. This gave Bonner something more than a mere interest in the profits after the lands were sold. It gave him an interest in the lands themselves. Johnson held the legal title, but he could not convey the lands without the consent of Bonner. In the case of Seymour v. Freer, 8 Wall. 202, 19 L. Ed. 306, the court said: "A trust is where there are rights, titles, and interests in property distinct from the legal ownership. In such cases the legal title, in the eye of the law, carries with it to the holder absolute domin

interests in the same property belonging to another. These rights, to the extent to which they exist, are a charge upon the property, and constitute an equity which a court of equity will protect and enforce whenever its aid for that purpose is properly invoked. Interests in real estate, purely contingent, may be made the subject of contract and equitable cognizance, as between the proper parties."

A. 48. In that case, McCulloch, Chatfield, | whatever price he saw fit, so long as he acted Allen, and others entered into a written con- in good faith. Here the contract provided tract for the purchase and sale of certain lands. Under the terms of the contract the title to the land to be purchased was placed in Chatfield, and he was to have the full and absolute control of the land and of the sale thereof, being only required to account for the proceeds of sale. After the land was sold and the expenses paid, the proceeds of sale were to be divided between the respective parties in proportion to the amounts they had paid in. The court held that the agreement contemplated that the trustee appointed in it should hold the title to such land as might be acquired under the agreement, dispose of the same to the best advan-ion; but behind it lie beneficial rights and tage possible, and convey the same when sold by his individual deed. The only limitation placed upon his powers was that he should not sell any of the land for less than $1 per acre without the consent of all parties in interest. Under these circumstances the court said that the trust created by the agreement plainly belonged to that class of trusts where the beneficiaries acquired no estate in lands held by the trustee until after they are sold, when their rights attach to the proceeds of sale; that under the terms of the agreement the title to the land acquired was taken in the name of the trustee for the express purpose of enabling him to sell it without let or hindrance and to divide the proceeds among those who might become interested in the speculation. Therefore the court held that McCulloch was not entitled to a decree adjudging that he was the owner of an undivided interest in the property, as a decree of that nature would very likely interfere with the dominion over the property which the trustee was entitled to exercise so long as he acted in good faith and was guilty of no dereliction of duty. It may be noted that there was no allegation that the trustee had acted fraudulently in that case. It was not even charged or proved that he had been either negligent or inefficient in the discharge of his duties.

It is true in the case at bar the defendant, Bonner, did not expend any money in the purchase of the land, but only contributed his time, labor, skill, and judgment in the purchase thereof. Under the terms of the agreement, the titles were all to be taken in the name of Johnson, who advanced the money to pay for the land; but hereafter the facts in the case at bar are essentially different from those in the case of McCulloch v. Chatfield, supra. In that case the duties and responsibilities of McCulloch ended when the title was taken in the name of Chatfield, and Chatfield had the absolute power to dispose of the lands in any manner and for

We think the principles there announced control the present case. The object of the trust here was the sale of the property, and the parties to the agreement were to agree upon the manner of its disposition. This gave the parties to the agreement a joint interest in the property. Johnson held the le gal title, but the rights of Bonner are as val id in equity as those of Johnson are at law. Bonner, in his cross-complaint, alleges that Johnson sold the property without his consent at a price very much less than they had been previously offered for the lands, and for a less price than the lands were worth when sold; that the plaintiff corporation was formed by persons for the express purpose of buying the lands at the same price for which they were purchased under the agreement under consideration; that Johnson, Rolfe, and the other incorporators had full knowledge of his rights and interest in the lands; and that said lands were purchased by the corporation for the express purposeof defrauding him and of depriving him of his interest in the land. Under the allegations of his cross-complaint, the grantee took the title subject to the trust upon which Johnson held the property, and a court of equity will deal with it as if the title to the land still remained in Johnson.

Therefore we think the court erred in sustaining the demurer to the defendant's answer and cross-complaint, and for that error the decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

RICHARDSON v. COHEN. (No. 304.) (Supreme Court of Arkansas. May 4, 1914.) APPEAL AND ERROR (§ 999*)-VERDICT-CON

CLUSIVENESS..

So far as the weight of the evidence is concerned, the verdict of a jury is conclusive on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. 999.*]

Appeal from Circuit Court, Cleburne County; Geo. W. Reed, Judge.

Action by Ed Cohen against F. C. Richardson. From a judgment for plaintiff, defendant appeals. Affirmed.

M. E. Vinson, of Heber Springs, for appellant. Mitchell & Thompson, of Heber Springs, and Gus Seawel, of Yellville, for appellee.

violently to lurch and jerk, and that the negligence in failing to provide handholds, ladders, or other appliances to enable the brakeman to pass safely from one car to another, concurring with the engineer's negligence, caused the injury from which the brakeman died, stated a cause of action.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]

3. APPEAL AND ERROR_(§ 1042*)-PLEADING (§ 22*)-COMPLAINT-REDUNDANCY.

That portions of a complaint were redundant, and that it contained unnecessary details, did not render it defective, and there was no prejudicial error in refusing to strike out unnecessary allegations.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. 1042;* Pleading, Cent. Dig. § 45; Dec. Dig. 22.*]

4. PLEADING (§ 18*)-COMPLAINT CERTAINTY AND DEFINITENESS.

grounds upon which plaintiff seeks to hold In alleging a cause of action, the particudefendant liable should be stated with as much definiteness and certainty as possible; but more specific details are not required and are matters to be developed by the testimony.

SMITH, J. The facts in this case are stat-lar ed in the opinion delivered on the former appeal, and the evidence in the present record is substantially the same as it was there. In fact, some of the most important evidence was taken from the former record.

The case is not reported in the official reports of this court, but the opinion may be found in 150 S. W. 574.1 The judgment on the former appeal was reversed, because the instruction given by the court, submitting the case to the jury, did not fully state the appellant's contention; but that error was not repeated at the trial from which this appeal was prosecuted. It is now earnestly insisted that the court below should have directed a verdict in appellant's favor; but we think the evidence presented a question of fact which was properly submitted to the jury, and the verdict of the jury is conclusive on us, so far as the weight of the evidence is concerned.

The judgment will therefore be affirmed.

KANSAS CITY SOUTHERN RY. CO. v. LESLIE. (No. 244.) (Supreme Court of Arkansas. April 6, 1914.)

1. REMOVAL OF CAUSES (8 3*)-CAUSES REMOVABLE-ACTION UNDER EMPLOYERS' LIABILITY ACT.

In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), the court properly denied a petition for removal to the federal court.

[Ed. Note. For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*] 2. MASTER AND SERVANT (§ 258*)-ACTIONS FOR INJURIES-COMPLAINT.

In an action for the death of a railway brakeman, a complaint alleging that defendant was negligent in not providing ladders and grabirons on the ends of the cars and in making up the train with a tank car next to a higher car, and in that its engineer handled the engine, so as to cause the train unnecessarily and Reported in full in the Southwestern Reporter; reported as a memorandum decision without opin

ion in 105 Ark. 697.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 39, 64; Dec. Dig. § 18.*] 5. APPEAL AND ERROR (§ 1043*)-HARMLESS ERROR-DENYING CONTINUANCE.

In an action for the death of a railway brakeman, in which the amended complaint, term of court, alleged that there were no grabfiled within 10 days before the beginning of the irons or handholds on the end of a tank car immediately in front of a refrigerator car or any other appliances thereon to enable a brakehold thereto and steady himself, it was not man in passing from one car to the other to prejudicial error to deny a continuance to enable defendant to investigate the history of the tank and refrigerator cars and ascertain whether they were in service before July, 1911, where it was shown at the trial that defendant had made investigation and was familiar with the history of the cars, and that they were in service prior to July 1, 1911, and had not been sent to the shop for general repairs since that date, as defendant had the benefit of the testimony which by the continuance it desired to procure.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dec. Dig. 8 1043.*]

6. CONTINUANCE (§ 14*)-GROUNDS-AMEND

MENT OF PLEADINGS.

Where, in an action for the death of a railway brakeman, the original complaint alleged that the air on the train failed to work properly, and the train could not therefore be handled or controlled properly, and that because of this defective condition the train began jerking and swaying violently, and so continued until plaintiff was injured, and the amended complaint, filed within 10 days before the beginning of the term of court, alleged that the enbecome out of order or in carelessly manipugineer was negligent in permitting his air to lating it, so that the train was caused to jerk violently and unusually, which jerking contributed to the injury, causing the death, a continuance to enable defendant to look into the air on the various cars on the train was properly denied, as the amended complaint merely stated in the original complaint, and, moreover, stated in a different way the cause of action the allegations as to the specific causes of the violent and unusual jerking were surplusage, and allegations that the engineer was negli

gent in causing such jerking would give defend- | 12. APPEAL AND ERROR (§ 1056*)-HARMLESS ant sufficient notice to require it to make all investigation which it deemed necessary.

16. EVIDENCE (§ 236*)-ACTIONS FOR DEATH -DECLARATIONS OF DEceased.

In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149. 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), to recover the damages sustained by the widow and child of a deceased employé and to recover for his conscious pain and suffering, his statements as to the cause of the injury were not admissible upon the issue as to the right to recover the damages sustained by the widow and child, as there was no privity between him and them.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 876-882; Dec. Dig. § 236.*] 17. TRIAL (§ 48*)-RECEPTION OF EVIDENCE -EVIDENCE ADMISSIBLE FOR LIMITED PUR

POSE.

In such action, assuming that the statements of deceased as to the cause of the injury were competent as declarations against interest so far as the right to recover for pain and suffering was concerned, it was not error to exclude them, where defendant did not ask that they be admitted, and limited solely to that cause of action.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 120; Dec. Dig. § 48.*]

18. EVIDENCE (§ 101*)-ADMISSIBILITY-LAW GOVERNING.

In actions in a state court to enforce rights given by a federal statute, the rules of evidence of the state court control unless otherwise provided by the federal law.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 124; Dec. Dig. § 101.*] 19. DEATH (§ 95*)-MEASURE OF DAMAGES. The damages recoverable for the benefit of the widow and child under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, P. 1322]), are a fair and just compensation for the pecuniary injuries resulting from the death, determined by taking into consideration deceased's age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, the probable increase or diminution of that ability with the lapse of time, deceased's earning power, rate of wages, and the care and attention which one of his disposition and character may be expected to give his family, from which should be deducted deceased's personal expenses, and the balance reduced to its personal value, is the measure of recovery.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 108, 109, 111-115, 120; Dec. Dig. 8 95.*]

| pain and suffering and for the loss of contributions to the widow and child, especially where it made no objection to the form when the verdict was rendered and did not ask that the jury be required to return separate amounts.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. § 1070.*]

Appeal from Circuit Court, Little River County; Jeff. T. Cowling, Judge.

Action by Sam E. Leslie, administrator of City Southern Railway Company. From a Leslie A. Old, deceased, against the Kansas judgment for plaintiff, defendant appeals. Affirmed.

This is a suit brought by the appellee as administrator of the estate of Leslie A. Old, deceased, for the benefit of the widow and her infant child, under the federal Employers' Liability Act and its amendment of April 5, 1910. The suit is brought for the loss of contributions to the widow and child by reason of the death of Old, and also for the conscious pain and suffering which Old endured before his death, which, under the act, survived to the administrator for the benefit of his widow and child.

The complaint, after alleging the incorporation of the appellant, and that it was engaged in interstate commerce, and after alleging that Leslie A. Old was in the employment of appellant as swing brakeman, actually engaged at the time of his injuries as such brakeman on a train that was being operated at the time in interstate commerce, alleged: "That his work required him to look after and pass over the tops of the cars composing the middle section of said train. That there were two box cars or refrigerator cars of equal height, and that immediately in front of these two cars was an oil tank car. That the floor of this car was seven or eight feet lower than the runway on top of the refrigerator car immediately in its rear. That there were no ladders or grabirons or handholds on the end of the box or refrigerator car to enable the brakemen to safely get from the top of the box or refrigerator car onto the platform or runway of the oil car immediately in front of it, except a ladder or grabiron down the side of the refrigerator car some distance from the end thereof. That the absence of these grabirons or handholds or ladders down the end of the box or refrigerator car made it unnecessarily hazardous for the brakemen to pass from the top of the box or refrigerator car to the platform or walkway of the oil tank car immediately in front of it. That there were no grabirons or handholds on the end of the oil car or tank car immediately in front of the refrigerator car, or any other appliances thereIn an action for the damages to the widow on to enable a brakeman in passing from the and child from the death of a railway brake- rear car to the oil car to hold to and steady man and to recover for his conscious pain and himself while making the passage." suffering, where the verdict was not excessive, defendant was not prejudiced by the failure of The complaint "that further alleged the jury to return separate amounts for the the engineer of said train was negligent, on

20. DEATH (§ 99*)-DAMAGES -EXCESSIVE

NESS.

In an action for the damages sustained by the widow and child and to recover for the conscious pain and suffering of a railway brakeman who was thrown from a train, had both legs cut off, and was otherwise seriously injured, and died shortly afterwards, where it appeared that he was 25 years old, that he had an expectancy of 35 years, and that his net earnings were $720 a year, a verdict for $25,000, reduced by the trial court to $18,000, was not excessive.

[Ed. Note. For other cases, see Death, Cent. Dig. 88 125-130; Dec. Dig. § 99.*]

21. Appeal and ERROR ($ 1070*)-HARMLESS

ERROR-FORM OF VERDict.