plaintiff in the justice court where the suit was commenced, and the defendant appealed to the circuit court. In the circuit court there was again a verdict and judgment for the plaintiff, and the defendant has appealed to this court. The material facts are as fol-casions of the witnesses for seeing or rememberlows: Mrs. E. J. Vaught owned a homestead in Montgomery county, Ark., upon which, amongst other personal property, there were the two cows involved in this suit. Her son, Garland Vaught, and Liza Vaught, his wife, resided on the place, and the cows in controversy were in their possession for several years. Garland Vaught died and at the time had an account for merchandise with W. C. Green. After his death Mrs. Liza Vaught assumed the account of her dead husband and continued to trade with Mr. Green. When the account became due she refused to pay it. Mr. Green sued her and obtained judgment against her for the amount of the account. An execution was issued on the "No. 5. The court instructs the jury that the preponderance of the evidence is not necessarily testifying to any fact or facts, but in determindetermined alone by the number of witnesses ing where the preponderance is, you may also take into consideration the opportunities or ocing what they testify to or about, the probability or improbability of its truth, the relation or connection, if any, between the witnesses and the parties, their interest in the result of the case, and their conduct and demeanor while testifying." [1, 2] The court refused to give the instruction, and error calling for a reversal of the judgment is predicated upon the ruling of the court. We think the assignment of error is well taken. An instruction in all respects similar to the refused instruction was approved by the court in Newhouse Mill & Lumber Co. v. Keller, 103 Ark. 538, 146 S. W. 855. In the present case the court did not give any instructions on this phase of the case. Two of the witnesses for the plaintiff were her sons, and they were material witnesses in her behalf, and their testimony strongly tended to corroborate her testimo judgment and placed in the hands of W. A. Martin, constable of the township in which she resided in Montgomery county. He levy. Hence it was prejudicial error not to ied the execution on the cows involved in this suit as the property of Mrs. Liza Vaught, and Mrs. E. J. Vaught instituted an action in replevin against the constable to regain pos session of the cows. According to the testimony of Mrs. E. J. Vaught, she owned the cows, and had loaned them to her son Garland, who resided on her place. She stated that he did not own the cows, and never claimed to own them. Another son also testified that she owned the cows, and only permitted her son Garland to keep them for their milk, and that he did not claim the cows at all. Evidence was adduced by the defendant tending to show that the cows had been in possession of Garland Vaught and his wife for more than five years, and that he had inortgaged the cows every year, and had always claimed to be the owner of them. Other circumstances were adduced in evidence tending to show that the cows belonged to Garland Vaught. In rebuttal, Mrs. E. J. Vaught testified that she signed a mortgage with her son at one time. She denied knowing that he had ever mortgaged the cows any other year. It was shown by her son that she had paid taxes on the cows. give any instruction on this question. The defendant having asked a correct instruction, it was prejudicial error to refuse to give it. [3] The defendant also asked for a reversal of the judgment because the court failed to give an instruction asked by him, that the burden of proof was upon the plaintiff. The instruction asked for was correct, but if this was the only assignment of error relied upon for a reversal of the judgment, the court would not reverse it because the instructions of the court in effect cast upon the plaintiff the burden of proof in the whole case. It would have been better, however, for the court in plain terms to have told the jury that the burden of proof was upon the plaintiff, and that it devolved upon her to establish her case by a preponderance of the evidence. For error in refusing instruction No. 5 asked for by the defendant, the judgment will be reversed, and the cause remanded for a new trial. SIMMONS v. LUSK et al. (No. 281.) (Supreme Court of Arkansas. April 2, 1917.) 1. APPEAL AND ERROR 697(1)—BILL OF EXCEPTIONS-CONTENTS. introduced evidence to establish the several alleA bill of exception reciting that plaintiff gations of his complaint, and that defendant introduced testimony to disprove each and every allegation of complaint where followed by the instruction given, sufficiently shows that it contains all the testimony then heard. The defendant claimed that he was entitled to a verdict under section 3661 of Kirby's Digest, which provides in substance that a pretended loan of chattels for five years without demand shall be void, unless such loan was in writing, as required by the statute. The court properly submitted the theory of the defendant to the jury, and there was suf-2. CARRIERS 271-PASSENGERS-PERFORMficient evidence to sustain the verdict for the plaintiff. The plaintiff asked the court to give instruction No. 5 to the jury, which is as follows: [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2918, 2919, 2921.j et ANCE OF CONTRACT-CARRYING TO DESTINA TION. Where trainman told plaintiff that her tickwas good on that train, and that it would stop at station named thereon, the company was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes bound by representation in absence of knowledge, being compelled to leave the train she became on part of plaintiff that information was not seriously ill and suffered a miscarriage. correct. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1067-1071.] 3. CARRIERS 248-PASSENGERS TIONS PURCHASE OF TICKETS. - REGULA A railway company may require passenger to purchase ticket before entering cars provided reasonable opportunities are offered to do so. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 994-996.] 4. TRIAL 243-CONFLICTING INSTRUCTIONS. In an action by a passenger to recover damages for refusal to stop at station called for by her ticket, the giving of conflicting instructions on right of recovery was prejudicial. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 564, 565.] Appeal from Circuit Court, Sebastian County; Paul Little, Judge. Action by Mrs. Frank Simmons against J. W. Lusk and others, receivers. Judgment for defendants, and plaintiff appeals. Reversed and remanded. Mrs. Frank Simmons sued the receivers of the St. Louis & San Francisco Railway Company to recover damages for refusing to stop one of its passenger trains on which she was a passenger at Mountainburg, Ark. The complaint alleged a state of facts substantially as follows: On the 15th day of October, 1916, plaintiff purchased a ticket at Wichita, Kan., over defendant's road to Mountainburg, Ark. She arrived early in the morning at Monett, Mo., a station on defendant's line of road where she changed cars. One of defendant's south-bound passenger trains was waiting there, and under the rules of the railway company it had porters or other employés at the entrance of the train to inspect the tickets of passengers and see if their tickets called for passage on that train. The plaintiff exhibited her ticket to Mountainburg, Ark., to the member of the train crew stationed at the entrance of the train. He examined her ticket and permitted her to enter the train without telling her that it did not stop at Mountainburg, although he knew by its schedule that it did not stop there. The fact that the train did not stop at Mountainburg was not known to the plaintiff, and she relied upon the fact that she had exhibited her ticket to a member of the train crew whose duty it was to inspect it and he permitted her to take passage on the train. After the train had gone a considerable distance the conductor took up her ticket and informed her that the train would not stop at Mountainburg. He refused to stop the train at Mountainburg, and compelled her to leave the train at Winslow with her two small children and hand baggage. She had to go out in the weather with her children and climb up the mountain to reach a place where she could stay until she could get to Mountainburg. She was a stranger in the place, and by reason of the excitement and worry caused by The answer of the defendant denied the allegations of the complaint. The plaintiff introduced testimony to establish the several allegations of her complaint. The defendant introduced testimony to disprove each and every allegation of plaintiff's complaint. The jury returned a verdict for the defendant, and from the judgment rendered the plaintiff has appealed. Oglesby, Cravens & Oglesby, of Ft. Smith, for appellant. B. R. Davidson, of Fayetteville, and W. F. Evans, of St. Louis, Mo., for appellees. HART, J. (after stating the facts as above). [1] Counsel for the defendants seek to uphold the judgment by invoking the rule that, where the bill of exceptions does not affirmatively show that it contains all the evidence, and there is no language from which it is naturally and necessarily inferred that it contains all the evidence, the rulings of the court upon the evidence and instructions are presumed to be correct. Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602. In that case the bill of exceptions began as follows: "Be it remembered that on the trial of this cause evidence was introduced tending to show the following state of facts." The court held that the statement was not conclusive that there were not other facts ment of the lower court. In other words, the This is not as definite and certain as a bill of exceptions ought to be where a reversal is sought for a failure of proof. It is true that the bill of exceptions does not follow the proper practice by expressly stating that it contains all the evidence introduced, but it does appear with reasonable certainty that no other evidence was introduced. It states that the plaintiff introduced testimony to establish the several allegations of the complaint; that the defendant introduced testimony to disprove each and every allegation of the plaintiff's complaint. Then follows the instruction given by the court. From this the natural inference would be drawn that no other testimony was introduced than that referred to, and we think the bill of exceptions was sufficient to present the errors for which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a reversal of the judgment is sought. Overman v. State, 49 Ark. 364, 5 S. W. 588; Hibbard v. Kirby, 38 Ark. 102; Leggett v. Grimmett, 36 Ark. 496; Walker v. Noll, 92 Ark. 148, 122 S. W. 488. It is next contended that the court erred in giving instruction No. 7, which is as follows: "If you find from the evidence that the plaintiff was invited to get on this train at Monett and was required to leave the train at Winslow because it did not stop at Mountainburg, and that this caused the injury complained of, this would not be the proximate cause of the injury, unless a man of ordinary care and prudence would, or should, have anticipated injury to her from allowing her to ride on this train as far as Winslow." this rule. It is true at the instance of the plaintiff correct instructions on this phase of the case were given but the court has uniformly and repeatedly held that it is error to give conflicting instructions. We need only cite a few cases on this rule. Brunson v. Teague, 123 Ark. 594, 186 S. W. 78; Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67, 147 S. W. 86; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048; McCurry v. Hawkins, 83 Ark. 202, 103 S. W. 600. For the error in giving instruction No. 7, the judgment must be reversed, and the cause remanded for a new trial. RITTER et al. v. BOARD OF DIRECTORS (No. 274.) (Supreme Court of Arkansas. April 2, 1917.) 1. LEVEES 9-LEVEE DISTRICTS-TITLE TO LANDS-DEEDS. [Ed. Note.-For other cases, see Levees, Cent. Dig. § 18.1 2. LEVEES 9- LEVEE DISTRICTS - POWERS OF BOARD. The board of directors of St. Francis levee district is a quasi public corporation, a subagency of the state, and its officers are clothed with only such authority as is expressly conferred by statute or by necessary implication. [Ed. Note.-For other cases, see Levees, Cent. Dig. § 18.] 3. LEVEES 9- LEVEE DISTRICTS - POWERS OF BOARD. Where special authority is conferred by statute on a levee board, it must be exercised only in the manner and to the extent prescribed. [Ed. Note.-For other cases, see Levees, Cent. Dig. $ 18.] [2-4] We think the court erred in giving this instruction. A railroad company may make a rule to require passengers to purchase tickets before entering the cars provided reasonable opportunities are offered to comply with it. St. Louis & San Francisco Ry. Co. v. Blythe, 94 Ark. 153, 126 S. W. the levee district all the right or interest the Under Acts 1893, p. 172, which conveys to 386, 29 L. R. A. (N. S.) 299; St. L. S. W. Ry. state has or may have within the next five years, Co. v. Hammett, 98 Ark. 418, 136 S. W. 191. the levee district took only the title the state Here the railroad company had a rule requir-had, and could convey nothing more than such title. ing the passengers to exhibit their tickets to the train porter or brakeman before they were allowed to enter the car. The trainman was placed there by the company to enforce its rules and prevent passengers from entering a train upon which they did not have transportation. It was in the line of his duty to give information and to make representations in reference to the rights of passengers holding tickets entitling them to transportation over its line of road. It would be a strange state of affairs if the agent had authority to prevent the passenger from entering a train who did not have proper transportation and still not have the authority to give reasonable and proper information concerning trains upon which such tickets might be used and the places where the train would stop and discharge passengers. When the trainman told plaintiff her ticket was good on that train, and that the train would stop at Mountainburg to allow her to get off, the company was bound by his representations in the absence of knowledge on the part of the passenger that the information given was not correct. C., R. I. & P. Ry. Co. v. Blundell, 191. S. W. 940; Hutchinson v. Southern Rd. Co., 140 N. C. 123, 52 S. E. 263, 6 Ann. Cas. 22; Louisville & Nashville Ry. Co. v. Scott, 141 Ky. 538, 133 S. W. 800, 34 L. R. A. (N. S.) 206, Ann. Cas. 1912C, 547, and case note. This principle was also recognized in St. L., I. M. & S. Ry. Co. v. Atchison, 47 Ark. 74, 14 S. W. 468, where the court held that where a passenger is misled by an agent authorized to speak for the company, he has his action against the company for the misdirections, and also in Railway Co. v. Adcock, 52 Ark. 406, 12 S. W. 874. A reading of instruction No. 7 shows that it is in direct conflict with 4. LEVEES OF BOARD. 9- LEVEE DISTRICTS-POWERS Under Acts 1893, p. 172, the president of the board of commissioners of a levee district has no more authority than the secretary in making conveyances. [Ed. Note.-For other cases, see Levees, Cent. Dig. § 18.] POWERS 5. LEVEES 9- LEVEE DISTRICTS 6. LEVEES 9-COVENANTS-CONDITION FOR REFUND-VALIDITY. In a deed of a levee district which contains special warranties not authorized to be made, the agreement to refund the money if title failed. being independent of the chief transaction, would require a new consideration in order to bind the district. [Ed. Note.-For other cases, see Levees, Cent. Dig. § 18.] Appeal from Craighead Chancery Court; Chas. D. Frierson, Chancellor. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Suit by E. Ritter and others against the Board of Directors of the St. Francis Levee District. Decree dismissing the complaint, and complainants appeal. Affirmed. Lamb, Turney & Sloan, of Jonesboro, for appellants. L. C. Going and Hughes & Hughes, all of Memphis, Tenn., for appellee. MCCULLOCH, C. J. Appellants purchased from the board of directors of St. Francis Levee district on April 4, 1906, certain large tracts of land situated in Mississippi and Poinsett counties, and the president of said levee district executed to appellants on that date two deeds conveying to appellants and their heirs and assigns forever "all of the right, title, and interest of said body politic and corporate in and to" the real estate described. The deeds recited the consideration to be paid in cash. The lands described in the deed were unsurveyed swamp lands which had never been patented to the state by the United States government, and it is conceded in the present litigation that the levee district had no title to or interest in the land to convey, but that the title was still held by the United States. This action was instituted by appellants against said levee district on July 16, 1915, in the chancery court, asking for a reformation of said deed in order to incorporate therein clauses warranting the title to the lands attempted to be conveyed and to recover upon the broken covenants of warranty thus incorporated the total sum of $35,186.67, which is the amount of the purchase price of the lands and interest thereon and the taxes, state, county, and levee taxes, paid out. It is alleged in the complaint that at the time of the purchase the president of the levee board agreed to incorporate in the deeds full covenants of warranty of title, and that when the deeds were prepared special clauses were inserted warranting the title, but, either by mistake or by design on the part of the president, the said clauses were omitted from the deeds at the time they were executed. It is further alleged in the complaint that on February 12, 1909, appellants first ascertained that the deeds delivered to them by the president of the levee district were only quitclaims and contained no covenants of warranty, and that said president upon their request executed to them an instrument in writing reciting the terms of said purchase and undertaking on the part of the levee board that in the event title to said lands, or any part thereof, should fail or be found not to have been in the levee district at the time of said conveyances, the levee district should refund to appellants the purchase price so paid, together with interest and all taxes paid out on the lands. Appellee in its answer denied that there was any agreement with appellants to execute deeds containing covenants of warranty, or that there was any error or mistake in the execu tion of the deeds, and the answer also pleaded lack of authority on the part of the president to enter into any such agreement. The answer also contains the plea of the statute of limitations. The chancery court denied the relief prayed for, and entered a decree from which decree an appeal has been duly dismissing the complaint for want of equity, prosecuted to this court. There is a conflict in the testimony on the issue of whether there was any mistake in the form of the deeds executed by the president of the levee board and as to the agreement concerning the same, but we pass that question and proceed to determine the next one presented in order, whether or not the president of the levee board is clothed with legal authority in conveying the lands of the district to enter into covenants of warranty of title. The levee board derived title to all of its lands (except those purchased at its own foreclosure sales) from the state under a statute which went into effect March 29, 1893, which also prescribes the terms and method of sale by the levee board. Acts of 1893, p. 172. The preamble of that statute reads as follows: "That for the purpose of assisting the citizens of the state to build and maintain a levee along the St. Francis front in this state, and in conall the lands of this state lying within said levee sideration of the general good of the state; that district except the 16th section school lands, and all the right or interest the state has or may have within the next five years, by reason of forfeiture for taxes or to any lands within said levee district except said 16th section school lands, is hereby conveyed to said levee district under the following restrictions and limitations." Section 1 of the act provides: board of directors, shall make a descriptive map That "said levee district represented by its of said lands, showing the location and character of same. That lands shall be graded into first, second and third grades, with reference to their relative elevation and timber, and a description of the land and timber given. The said levee district may sell said lands for the minimum prices of $2.50, $1.50 and 50 cents per acre as to grade," and that "the treasurer of the levee board of said district, upon the receipt of payment of any part or parcel of said lands, shall certify the same to the president of said board, who shall execute a deed in the name of said corporation to the purchaser of said lands, the money arising from such sales or issuance of bonds to be applied solely to the construction and maintenance of the levee of said levee district." In a subsequent section (section 3) it is provided that the president of the levee board shall make a bond to the state in the sum of $50,000 "conditioned upon the faithful and honest appropriation of the proceeds of the aforesaid lands to the building and maintaining the levee of said district." [1] It is seen from the terms of this statute that no particular lands were conveyed by the state, but that "all the right or interest the state has or may have within the next five years" in any lands, except said sixteenth section school lands, was transferred to the levee district, and it necessarily confers no greater authority upon the president than it does upon the secretary. It provides that the funds shall be paid to the treasurer, and that the president “shall execute a deed in the name of said corporation to the purchaser of said lands." The authority to execute a deed, as we have already said, not embracing the authority to enter into a covenant of warranty, the presi follows that there was no authority confer the title failed. The statute in this respect. red upon the levee district to undertake to convey anything more than the interest of the state which was thus transferred. The president of the district was authorized to execute a deed, but that authority could extend no further than the execution of an instrument conveying the interest which the district had received from the state. A covenant of warranty embraced in a deed is not a part of the conveyance itself, and the au-dent was without power to enter into a spethority to execute a deed does not carry with it authority to euter into covenants of warranty. cial contract to refund the money, but the effect of the decision in the two cases just referred to is that, where the levee district, [2] The board of directors of St. Francis through its board of directors, received the levee district is a quasi public corporation, a funds with knowledge of the contract to resubagency of the state, and its officers are fund in the event of failure of title, it is esclothed with only such authority as is ex- topped to dispute the authority to enter inpressly conferred by statute or by necessary to the contract. Now in the present case it implication. Carson v. St. Francis Levee is shown affirmatively that there was no District, 59 Ark. 513, 27 S. W. 590; Altheim-knowledge on the part of the levee board of er v. Board of Directors of Plum Bayou Lev- any special contract being entered into with ee District, 79 Ark. 229, 95 S. W. 140. respect to refund of the money. On the contrary, it appears in the report of the secretary to the board of directors that the title to the lands was in a state of doubt, and that the district had by the sale gotten rid of lands to which the title was uncertain. The special contract alleged to have been entered into later by the president with appellants does not appear to have been made by the authority of the board, and in addition it is essential that it should have been based upon an independent consideration in order to bind the district, for the reason that it was not a part of the original transaction. [3-6] The officers of the state in dealing with lands of the state are not clothed with any greater authority than that of conveying the state's interest in the lands it holds, and there is no language found in the act now under consideration which manifests an intention on the part of the Legislature to confer any other or greater authority on the president of the levee district. Where special authority is conferred by statute, it must be exercised only in the manner and to the extent prescribed. It is insisted that the decision of this court in the case of Board of Directors of St. Francis Levee District v. Myers, 79 Ark. 14, 94 S. W. 716, leads to the conclusion that there was authority on the part of the president to warrant the title of lands which were attempted to be conveyed. The decision on that question was, however, expressly pretermitted in the opinion. In that case there was a special clause in the deed whereby the levee district undertook to refund the purchase price upon failure of title to the lands conveyed, and it was said in the opinion that, even if there was no power on the part of the president to bind the district by express covenants of warranty of title, yet the district, having received the (Supreme Court of Arkansas. March 26, 1917.) funds pursuant to the terms of that contract, was bound to refund them in the event of the failure of title. The decision was based entirely on the doctrine of estoppel, presumably on the ground that the levee board itself had either authorized the execution of the contract or had accepted the proceeds of the sale with knowledge of its execution. This is made clearer by the opinion in the later case of St. Francis Levee District v. Cottonwood Lumber Co., 86 Ark. 221, 110 S. W. 805, where it was held that the district was not bound by the unauthorized promise of the secretary of the board to refund the proceeds of the sale of lands where It is unnecessary to discuss the further question presented concerning the statute of limitations and of laches on the part of appellants for the reason that we have reached the conclusion that there was no authority on the part of the president to warrant the title to the land attempted to be conveyed, or to enter into the special contract with respect to refunding the proceeds of the sale. The decree of the chancery court is therefore affirmed. DAVIS v. DAWSON. (No. 266.) 1. BROKERS 40-COMPENSATION-ACTIONS. Where a written contract for the payment of brokerage commissions was modified by a parol agreement, an action may be maintained on such contract as modified. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 38-40.] 2. TRIAL 343-VERDICT-EFFECT. TO. 64(1)—COMPENSATION-RIGHT Where the owner of land in writing agreed to pay a broker a fixed commission upon concluding a sale of property and one of three prospective purchasers refused to consummate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |