by their landlords, and, with their consent, charged to their accounts, and paid out of their crops when gathered. When payment by others is valid, and when invalid, is discussed and the line clearly marked in Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652. Counsel differ as to the exact number properly proved under this rule, but an exact estimate is not necessary, for there can be no doubt that more than sufficient were fully proved to have been paid in good faith through others to wipe out the apparent majority of 13 for Driver, and give Rhodes a majority over him, and to increase the majority already shown of Lovewell over Bowen. Appellants also proved many illegal votes which were cast on "gift receipts," as they are called in the record, to have been cast for Bowen and Driver. A discussion and calculation of them is unnecessary, as these conclusions call for a reversal of the case.

Other questions are presented and argued, but it is not thought that it is necessary to discuss them, because no new questions of law are involved.

The case is reversed and remanded, with directions to grant appellees a new trial.

Under Kirby's Dig. § 4375, declaring that a fire insurance policy, in case of total loss of the property insured, shall be considered a liquidated demand for the full amount of the policy, the value of a house wholly destroyed by fire is not open to evidence in an action on the policy covering the same.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1275.]

2. SAME-ACTION ON POLICY-VALUE OF PROPERTY-SUBMISSION OF ISSUE.

In an action on an insurance policy, where the evidence of the value of the property destroyed is uncontradicted, and is given without objection, and without the witness being subjected to cross-examination, the question of value need not be submitted to the jury, although the evidence thereof is general in character, and the witness does not show himself qualified to testify thereto.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 336.]

3. SAME LIMITATION OF ACTION-PROVISIONS OF POLICY.

Under the express provisions of Kirby's Dig. § 4381, if plaintiff in an action on an insurance policy suffers nonsuit he may commence a new action within one year after such nonsuit, notwithstanding stipulations in the policy of insurance to the contrary.

Action by T. D. Noe, as special administrator of Ula Mitchell (formerly Ula Robinson), against the American Central Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sam H. Davidson, Shepard Barclay, and Thos. T. Fauntelroy, for appellant. Chas. E. Elmore and J. B. Baker, for appellee.

HILL, C. J. The insurance company issued a policy of fire insurance to Mrs. Ula Robinson (afterwards Mrs. Mitchell) upon her dwelling house and household and kitchen furniture. The policy was for $1,000 on the house and $400 on the furniture, in consideration of a single premium of $17.50. During its life the house and part of the furniture were destroyed by fire. Proofs of loss were sent to the company within the stipulated time required by the policy. The proofs were made upon the forms furnished by the company, and were in substantial compliance with the terms of the policy, and seem to be full and complete. The company objected to them as incomplete and unsatisfactory, and declined to accept them for these reasons: They did not give copy of written portions of the policy, or all the descriptions in the policy; a conflict was stated to exist in the valuation of the house; and failed to show depreciation in the building. Then a demand is made to produce for examination books of accounts, bills, vouchers, invoices, etc., relating to half dozen articles of household goods, etc., including the Family Bible and the Criminal Code of Arkansas. Objection was further made to the insufficiency of the statements as to the origin of the fire, the proofs merely stating it was unknown, and the company intimated that she had knowledge of circumstances which required explanation. In reply to this Mrs. Robinson requested a return of the proofs, which were sent her. The matter rested for about a year, when a demand was made by Mrs. Robinson for arbitration and appraisement, and fuller and more explicit proofs were sent. Nothing was done by the company, and this suit was brought. Various defenses, including all the matters above referred to (except no charge was made that Mrs. Robinson caused or connived at the fire), were interposed. Other defenses, which are settled against the company by the statutes of this state, were also interposed. On the trial Mrs. Mitchell and her father were the only witnesses. They proved the destruction of the house by fire, its value to be from $1,300 to $1,500, and Mr. Robinson, the father, testified, "The loss on the personal property was $298." He showed that he had assisted his daughter in making the proofs of loss and placing the value on the personal property. This sum was the aggregate of the values placed on the various items in the proofs of loss. No

objection was made to this evidence, and no cross-examination of the witness to show his familiarity or unfamiliarity with the property or its market value; no crossexamination to develop upon what basis he made the estimate was had. At the conclusion of this testimony, and upon it and the correspondence between the parties, the court directed the jury to find a verdict for $1,298 and interest.

1. The first point urged for a reversal is that the question of value should have been sent to the jury for determination. This argument is chiefly based on a lack of qualification of the witnesses to testify as to the value of the house and the fact that it was put between $1,300 and $1,500. The question of value of the house was not open to evidence. Section 4375, Kirby's Dig., makes the amount of the policy on the house a liquidated demand. This was evidently overlooked by the insurance company in its demands and in its present insistence. The value of the personal property was proved by Mr. Robinson in the general statement above quoted, which was not objected to. The company could have required him to have first proved his knowledge of the property and its market value, and could have cross-examined him to show the incorrectness of his valuation, to impeach the truth or accuracy of his estimates, and may have shown by such crossexamination a doubt of the absolute valuation placed on the property. In such event it would have been error to have directed a verdict, for the determination of the value would then have been a question exclusively within the province of the jury. But a jury cannot be permitted to arbitrarily disregard the sworn testimony of a witness which is uncontradicted, and bears upon its face no fact impeaching either its verity or accuracy. In this case there was absolutely nothing to impair the force of this testimony, and therefore there was no error in instructing a verdict.

2. Error is assigned in permitting recovery on the policy in an action begun more than one year after the fire, contrary to a clause in the policy. The complaint alleges and the answer admits that suit was filed within a year, and a nonsuit taken in that suit, and this suit filed within a year thereafter. This brought the action within section 4381, Kirby's Dig.

3. A question is raised as to the total loss of the building. The uncontroverted evidence is that all of it was lost except a glass front door, which was crushed after removal. This was a total loss within the meaning of the policy. 4 Joyce, Insurance, § 3029.

4. Other questions are incidentally raised, but they are not regarded as sufficiently substantial to call for discussion.

The judgment is affirmed.

TILLAR v. HENRY.

(Supreme Court of Arkansas. May 27, 1905.) 1. CONSTRUCTIVE TRUSTS-PAROL EVIDENCE. Though a constructive trust may be proved by parol, the evidence is insufficient unless "it is full, clear, and convincing."

2. SAME-SUFFICIENCY.

Evidence held insufficient to establish a constructive trust of land purchased at a foreclosure sale.

Appeal from Drew Chancery Court; Marcus L. Hawkins, Chancellor.

Action by T. R. Henry against T. F. Tillar, in which Mrs. Sue M. Henry filed a crosscomplaint. From an adverse decree, defendant Tillar appeals. Reversed.

S. M. Taylor and W. S. McCain, for appellant. Bridges & Wooldridge and Wells, Williamson & Cotham, for appellee.

HILL, C. J. T. R. Henry and J. T. Duncan were partners in business under the firm name of Duncan & Henry. Henry died, leaving Mrs. Sue M. Henry, his widow, and Claude Henry, their son. Duncan is a brother of Mrs. Henry, and after her husband's death looked after her affairs. T. F. Tillar was a neighbor and friend of the Henrys-a business man and a planter. The firm of Duncan & Henry owed considerable money, but Henry owned considerable property, both real and personal, but the estate had no cash to meet present demands. The real estate consisted of three places-the Henry place, or home place, consisting of over 500 acres, of which nearly 300 was in cultivation; the Guinn place, of about 700 acres, of which about 100 acres was in cultivation; and the Roane place, 160 acres, of which 40 was in cultivation. Mrs. Henry was administratrix of her husband's estate. The Guinn and Roane places were under mortgages. The mortgages were foreclosed, and the properties sold at commissioner's sale January 28, 1893, and bought by Tillar, for about $1,450 for the two places. Deeds were duly executed to him. On April 1, 1893, the Henry or home place was sold at administratrix's sale, subject to the widow's dower. Duncan requested Tillar to buy this property for Mrs. Henry's benefit. He went to the county seat to attend the sale, and found the representatives of the creditors there, expecting to buy the place to protect their debts. They regarded the estate as solvent, and expected to work their debts out through regular course of administration. Tillar entered into negotiations with them, and effected an agreement by which he purchased all the claims at par; the creditors giving him one and two years' time on the payment. When this agreement was reached, the property was then sold, and Tillar purchased, and at once announced he was purchasing 'for Mrs. Henry. There is no dispute as to his purchase of the place for her benefit; he to retain possession and use of it until the

place repaid his expenditures, and then to turn it over to her and her son. About the last of 1901 or early in 1902 Tillar brought suit against Duncan on a judgment against Duncan & Henry which he had purchased. The suit was brought just before the judgment would be barred by limitations. Duncan filed a cross-complaint against Tillar, alleging that Tillar bought the three places pursuant to an agreement with him to the effect that he would purchase these places in his own name, and hold them in trust to pay the debts of Duncan & Henry-the remainder over to Mrs. Henry and her sonand that the rents and profits and sales had been sufficient to pay off all the indebtedness, including the judgment sued on. Mrs. Henry, on the same day this cross-complaint was verified, filed in behalf of herself and son a suit in equity to the same effect. The cases were consolidated in chancery and tried together, with the result that Tillar was held a trustee for all three places, and an account stated accordingly. To reverse that decree he has appealed, but does not appeal from the decree as to the Henry place, nor the accounting in regard thereto; averring that he always held that subject only to reimbursement, which is accorded him in the decree. Therefore the only question presented is as to whether he should be held as trustee for the Guinn and Roane places.

The substance of the evidence is as follows: Duncan says that on the 27th of January, 1893, the day before the chancery sales of these places, at the village of Tillar, he made an agreement with Tillar by which Tillar was to buy in the places, pay the probated claims, and hold the real estate as security until he got his money back; that there was no agreement as to interest, but he expected Tillar to get 10 per cent. Duncan says that prior to this he had a promise from a gentleman in Monticello, of means, to let him have $4,000 to pay off the claims, but Mrs. Henry preferred dealing with Tillar, and when he made this arrangement with Tillar he dropped the other matter. Tillar did not attend the sale, but Duncan says he carried a note from him to Judge W. T. Wells, who was attending to Mrs. Henry's administration matters, and also foreclosing these mortgages, to buy in the land in his (Tillar's) name for Mrs. Sue Henry, but not to pay over $1,500. The lands were bid in at a price slightly under $1,500 by Judge Wells, and the purchase money paid by Tillar, and the deeds made to him. Judge Wells testifies that he does not remember whether Tillar was present, or not, at the sale; has an impression that Duncan was there, and Tillar was not. He is not certain that he bid in the lands for Tillar; thinks it likely he did so; and his recollection is that he received a note or message from Tillar, but, if a note, he cannot produce it, for it is either lost or de

stroyed. His impression was that in buying the Henry lands there was some understanding between Tillar and Mrs. Henry that Tillar was buying to assist her. Tillar positively denies any agreement with Duncan about the purchase of these places in January, and says when he bought at these sales he had no thought of afterwards buying at the probate sale the Henry place; that he bought the Henry place pursuant to request of Duncan, and told Mrs. Henry of the arrangement immediately afterwards, and was always ready to fulfill it. His version of the purchase at the January sales is that he wrote a letter to Judge Wells by mail, prior to the sales, to buy the lands for him, but not to pay exceeding $1,500 for both places. He denies positively any agreement with Duncan or Mrs. Henry about them. He details his agreement with the creditors, and the purchase on April 1st of the home place; but, as there is no dispute over that matter, it is not necessary to further refer to it, other than to say that his statement in this regard comports with the other witnesses. Mrs. Henry's testimony throws but little, if any, light on the question. Her whole testimony leaves doubt whether she regarded Tillar as trustee for all the lands, or the home place only. As her information was derived from Duncan, stronger corroboration of his testimony would be expected than is found in this evidence. She asked him for a statement of her account in 1898, and he furnished an itemized account of the Henry place, brought to April 1, 1898. Appellee claims two items in it acknowledged credits arising from the Guinn and Roane places. These grew out of rents collected from two negroes to whom Henry had sold small tracts in his lifetime. One had a clearing right on the line between the home place and the other, and, of the other, it is doubtful which tract it came from. Tillar testified that he thought these tracts were on the Henry place, and they had been so treated, and he continued to do so, and, if they were not, he simply made a mistake against himself in charging himself with rents of them. He received rents from other tenants on both places for five years, and received a large sum from the sales of a cypress brake, and received money and notes from other sales. If he intended to recognize a trust against these two places, it is inconceivable that he should do so by charging himself with the rent from these two negroes, and omit to charge all other receipts from the places. The statement, including these errors, if errors they be, is strongly corroborative of Tillar's evidence. In the nine years of the alleged trust, it was the only account called for, and only one conversation between him and Mrs. Henry was shown during that time, except his promise at the beginning of his trust to do the best he could for her; and that left doubt, as indicated above. whether she regarded him as trustee for

more than the home place. There are some corroborating evidence and circumstances for each side, but in the main the case rests upon the testimony of Duncan and Tillar. Each intelligent, interested, and with equal knowledge of the facts, yet their testimony is in irreconcilable conflict. One establishes the trust, and the other defeats it. The appellees rely in the first instance on an express trust, resting on the letter Duncan says Tillar wrote Judge Wells, telling him to buy the places in his (Tillar's) name for Mrs. Sue Henry. This letter and its contents depend entirely upon the testimony of Duncan. Judge Wells does not even remember whether he received any letter at all, and, of course, cannot and does not testify to its contents. Tillar positively denies writing such letter, and denies sending any letter by Duncan at all, and says that he wrote an entirely different letter from the one quoted by Duncan, and sent it by mail to Judge Wells, some days prior to the sale. To say nothing of the unreliability of the memory of the contents of a letter 12 years ago, the appellees wholly fail on the burden of proof on this issue. The trust chiefly relied upon by appellees is a constructive trust.

Counsel for appellant lays down this application of the principles of constructive trusts to this case: "Now, if Tillar, on the day before the chancery sales, agreed with Duncan to go and buy the place for Mrs. Henry, this of itself would not make Tillar's purchase fraudulent, because fraud consists in acts and results, and not in mere words. But if Tillar made with Duncan such an agreement, oral or otherwise, and thereby Duncan and Mrs. Henry were induced to relax their efforts to raise money and pay off the decrees, or if this agreement was made known to other bidders, who would have paid more for the property, and they were, by reason of this agreement, induced to refrain from 'bidding against the widow,' then it would have been a fraud for Tillar afterwards to claim the land for himself." Counsel for appellees insist that this application of the law concedes the case to them. Thus the counsel met on common ground in applying the doctrine of constructive trusts to the case at bar. Accepting this application as sound, it is left to determine the sufficiency of the evidence. Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trusts to be clear and satisfactory. Sometimes it is expressed that the "evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact," and sometimes it is expressed as requiring the evidence to be "full, clear, and convincing," and sometimes expressed as requiring it to be "clearly established." Crittenden v. Woodruff, 11 Ark. 82; Trapnall's Adm'x v. Brown, 19 Ark. 39; Johnson V. Richardson, 44 Ark. 365; Richardson v.

Taylor, 45 Ark. 472; Robinson v. Robinson, 45 Ark. 481; Crow v. Watkins, 48 Ark. 169, 2 S. W. 659; Camden v. Bennett, 64 Ark. 155, 41 S. W. 854; 1 Perry on Trusts, § 137. The statement of the rule makes it manifest that the evidence in this case' does not measure up to the standard required to establish a constructive trust by parol. Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism of the courts has prevented the tenure of realty being based on such shifting sands. The statute of frauds has limited trusts capable of being proved by parol, and the courts uniformly tell those who seek to establish those trusts permitted to be established in this way, "Your evidence must be full, clear, and convincing." The appellees failed to establish the trust as to the Guinn and Roane places according to the requirements of equity jurisprudence.

The decree is affirmed as to the Henry place, but is reversed as to the Roane and Guinn places, and the cause is remanded, with directions to enter a decree in accordance herewith.

PRICE et al. v. ST. LOUIS, I. M. & S. RY. CO.

(Supreme Court of Arkansas. May 27, 1905.) 1. CARRIERS-INJURY TO DRUNKEN PASSENGER NEGLIGENCE

-NEGLIGENCE-CONTRLBUTORY
—QUESTION for JURY.

In an action against a railroad company for the death of a drunken passenger, who, it was alleged, was placed in charge of defendant's conductor, and was by him negligently permitted to go onto the platform and fall from the train, evidence held to justify submission to the jury of the issues of defendant's negligence and the contributory negligence of deceased. 2. SAME-ACCEPTANCE OF INTOXICATED PERSON AS PASSENGER.

A railroad company is not required to accept as a passenger, without an attendant, one who, from intoxication, is mentally or physically incapable of taking care of himself.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 971.]

3. SAME-AUTHORITY OF CARRIER'S AGENT.

The conductor of a passenger train who accepts an unattended passenger so drunk as to be unable to look after himself is acting within the scope of his authority.

4. SAME-CARE REQUIRED OF CARRIER. Where the conductor of a pa nger train accepts an unattended passenger who is so drunk as to be unable to look after himself, the railroad company, while not an insurer of such passenger's safety, is bound to exercise reasonable care to protect him from danger.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1095.]

5. SAME-CONTRIBUTORY NEGLIGENCE.

Where a railroad company accepts an unattended passenger who is so drunk as to be unable to take care of himself, and has knowledge of such condition when it accepts him as a passenger, the question of contributory negligence cannot arise when he is injured.

[Ed. Note.-For cases in point, see vol. 9 Cent. Dig. Carriers, § 1350.]

6. SAME RES IPSA LOQUITUR.

The doctrine of res ipsa loquitur does not apply where the accident might as plausibly have resulted from negligence on the part of the passenger as on the part of the carrier; nor is it applicable to the death of a passenger from circumstances that are personal and peculiar to him, and not by reason of any management of or accident to the train itself.

7. NEGLIGENCE - CONTRIBUTORY NEGLIGENCE -CONFLICTING EVIDENCE - QUESTIONS FOR

JURY. Where the evidence is conflicting the questions of negligence and contributory negligence are for the jury.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 298, 299.]

Appeal from Circuit Court, Miller County; Joel D. Conway, Judge.

Action by C. S. Price and' others against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

J. F. Price was killed on the night of December 16, 1898, by falling from a passenger train of the St. Louis, Iron Mountain & Southern Railway. The "cause of fall unknown to jury" was the verdict of the jury of inquest. The widow and children of Price, appellants, sued the appellee, alleging, inter alia, that the proprietor of the Silver Moon Hotel, at Texarkana, where Price was stopping, being aware that he expected to go to Newport, Ark., to visit his wife, who was then sojourning there, took Price, who was in an insensible condition from intoxication, to appellant's depot at Texarkana, and delivered him to the conductor of the Cannon Ball train; stating to the conductor that he desired Price to be put off at Newport, and paying his fare to that point. The complaint then continues as follows: "The said conductor received the deceased in such insensible and irresponsible condition, well knowing the same, and, having divested him of all his valuables, including about twenty-seven dollars in money, said conductor took charge of his money, valise, and other valuables, for which he gave a receipt to said proprietor of the hotel, and said conductor caused the deceased to be laid down on the seats near the door of the smoking car of said train, and there left him, and that the defendant received said deceased, and undertook to transport, carry, and safely deliver him at Newport, Arkansas, well knowing the insensible and irresponsible condition of said deceased. That after having deposited the deceased in said smoking car, the conductor, brakeman, and other employés of defendant on said train paid no further attention to the deceased, and negligently and carelessly failed to exercise any diligence or care whatever with respect to said deceased, by reason of which he came to his death. That just before said train reached the station at said Cabot, it being then nighttime, the deceased awoke from his drunken stupor, in a dazed and bewil

dered condition, and, not knowing or realizing his situation or whereabouts, while in said drunken and irresponsible condition, arose, and without being warned, cautioned, or restrained as he should have been, staggered through the door of the car, which was but a few feet distant, and out upon the platform of said car-the train being then moving at great rate of speed-and was thrown from said car to the ground, thereby receiving mortal injuries, from which he died, and which could and should have been prevented by the exercise of proper care by the defendant, and that his dead body was discovered lying upon or near the defendant's railway track, horribly mutilated, on the morning of the 17th of December, 1898. That upon the arrival of said Cannon Ball train at Newport, the said conductor left the valise belonging to said deceased at the depot at Newport; stating that deceased was lost somewhere between Little Rock and Newport." That deceased at the time of his death was earning a total income of $4,000 per annum. The plaintiffs were obliged to expend $500 for the burial expenses of deceased, and, by reason of the wrongs and injuries complained of, had sustained damages in the sum of $10,000, for which they prayed judgment. The defendant, for its answer, denied every material allegation in the complaint, save that it was a corporation and common carrier, and that the deceased was intoxicated, and alleged contributory negligence of the deceased, and that whatever injuries he reIceived were due to his intoxication and Iwant of care. There was a trial at the November term, 1900.

The proprietor of the hotel, who put deceased, Price, on the train, testified, so far as his evidence is material here, as follows: "I took him in, and he had a valise, with a quart bottle of whisky in it. I put him in care of the conductor, and paid his fare, and gave the remainder of his money to the conductor, to take care of until he got home. I told the conductor he was unable to take care of himself. He didn't seem to know anything. There were two seats in the back end of the car where we took him, and, if I remember right, we put him in the end seat and laid him down. I took out his money, and got the conductor to take his fare out. The conductor told me he would take care of him. I said: 'You have to watch him closely. Take care of him.' I opened his valise, and showed him a bottle of whisky and said: 'He will need a drink or two before reaching Newport, to keep him from getting too nervous on you.' I don't think he knew what was going on in regard to the money. Anybody could see he was just like a child. The conductor said, 'Yes,' he would see that he would be taken care of all right. I told him two or three times. The reason I took him down was that I was uneasy, and